PourasbavaOrdinance [XXVI of 1977]

Declarationand alternation of Municipality Rules, 1978 which was published in theBangladesh Gazette on 30th May, 1978 have been made by the Government inexercise of power under section 146 of the Pourashava Ordinance, 1977.

HarunurRashid vs Bangladesh 39 DLR 445.

Section 3(1)—

Meredeclaration of a rural area to be an urban area by the Government bynotification in the Gazette under the said section 3(1) does not ipso factomake it a Municipality or make it included in the limits of an existingMunicipality by way of extension.

HarunurRashid vs Bangladesh 39 DLR 445.

Sections 3(1) and 4—

Meredeclaration of a rural area as urban area will not make it a part of aPourashava ipso facta—Further legal steps and ultimate publication of aNotification as required under section 4 read with rules made thereunder arenecessary to make it part of Pourashava.

Jalaluddinvs Bangladesh 42 DLR 132.

Section 3(2)—

Thepetitioner's statistical report over the entire Mouza has no manner ofapplication, rather the specific report on the extended area invites the primeconsideration because the Jaw only provides for the area as shown in thenotification described by plot numbers and JI number but 1_1ot by the entireMouza, the Ward or Union as alleged by the petitioner.

SultanaBegum and others vs Government of Bangladesh & others (Special Original) 55DLR 190.

Section 10(2)(g)—

The statusof a defaulter as to loan need be related to the day of submission ofnomination paper.

Abdul Matinvs. Election Commissioner 45 DLR 220.

Section 10(2)(g)—

The questionof default of non-payment of outstanding dues of financial institutions need bean established fact. When cases are pending on the question, the question ofdefault is to be decided by the Court and not by the Returning Officer.

Abdul Jalilvs Deputy Commissioner 45 DLR 258.

Section 13—

There may beoccasions or case(s) where public representative by his conduct has made himundesirable to perform the function and duties of the office of electedrepresentative —In that situation the authority on consideration of tangiblematerials is competent to put such a representative out of his office becausehis continuation in the office is undesirable from the administrative point ofview.

Abdur Rashid(Md) vs LGRD and others 55 DLR (AD) 72.

Sections 13 and 17—

Law providesfor an action under section 13 when a Chairman or a member acts prejudiciallyto the Pourashava. A Pourashava is corporated body which can only be supersededon serious allegation.

RuralDevelopment & Co-operatives, Government of Bangladesh vs Md. Afzal 40 DLR(AD) 154.

Section 13(1)(d)—

There is nomerit in the contention that as the resolution of the vote of no confidence waspassed prior to holding of an inquiry in respect of the allegation against thepetitioner, in the eye of law there was no resolution for the removal of thepetitioner.

MosharrafHossain (Md) (Babul) vs Bangladesh 56 DLR (AD) 113.

Section 13(1)(d) & sections 130-135—

Theprovision in Chapter I in Part II and the provision in Chapter I in Part V areto be read independent of each other.

MosharrafHossain (Md) (Babul) vs Bangladesh 56 DLR (AD) 113.

Section 13(l)(d)—

Article 9 ofthe Constitution contains policy matter of the Republic for the attainment ofwhich endeavour shall have to be made by the State—The Court is to go by thelaw as it is.

MosharrafHossain (Md) (Babul) vs Bangladesh 56 DLR (AD) 113.

Section 15(2)—

Provisionfor holding election within one month from the time when office of the Chairmanbecomes vacant is directory not mandatory.

Noconsequence has been provided in the law for breach of this requirement ofholding the byelection within one month. So it gives a prima facie appearancethat the legislatures did not intend to make this provision mandatory.

Abdul HamidMiah vs Bangladesh Election Commission 38 DLR 296.

Section 21—

Thepetitioner is a Chairman of the Pourashava and because of the impugned GazetteNotification relating to delimitation of wards he cannot be said to be anaggrieved person within the meaning of Article 102 of the Constitution in thatby such Notification no right of his, either constitutional or legal, has beeninfringed.

KhalilurRahman (Md) vs Government of Bangladesh and others 52 DLR (AD) 115.

Section 21—

Distributionof population in different wards with a variation of not more than ten percentbeing a disputed question of fact cannot be decided in writ jurisdiction.

Abdul Mannanand another vs Secretary, Ministry of LGRD and others (Spl. Original) 52 DLR471.

Section 21—

Theprovision of section 41 of the Pourashava Ordinance has been designed toreallocate the area and delimitate the wards with emphasis on the distributionof population as far as practicable taking into consideration the territorialunity and the administrative convenience.

Abdul Mannanvs Bangladesh and others 55 DLR (AD) 143.

Section 21(1)—

Section 21of the Pourashava Ordinance is directory and not mandatory. It is within theprovince of the Delimitation Officer to take into consideration distribution ofpopulation as far as practicable vis—a—vis the territorial unity andadministrative convenience. Variation of population alone cannot be a ground torender invalid a report of delimitation.

Miah LutfiHossain Kasru and others vs Bangladesh and others 53 DLR (AD) 25.

Section 41—

Thepetitioners being duly 'appointed by the Pourashava Chairman, theirappointments cannot be cancelled by him on the plea that there were someirregularities in the matter of appointment. If any irregularity was committed,it was for the Chairman to account for it but the petitioners cannot bepenalised.

Khorshed Ali(Md) vs Secretary, Ministry of LGRD and Co—operatives and others 54 DLR 381.

Sections 130-133—

System ofcheck and balance has been built in by the law itself. Article 9 of theConstitution directs the Government to develop and nurse the Governmentinstitutions.

RuralDevelopment & Co-operatives Government of Bangladesh vs Md Afzal 40 DLR(AD) 154.

Section 131—

Section 131authorised the Prescribed Authority to take remedial measures. The measuretaken is derogation of the constitutional schedule for local institutions beingthe edifice of democratic structure.

RuralDevelopment & Co-operatives, Government of Bangladesh vs Md Afzal 40 DLR(AD) 145.

Sections 133(2) and 135—

ThePourashava, a Corporate body which is elected by direct adult franchise, cannotbe superseded without giving an opportunity of being heard to the electedCommissioners.

RuralDevelopment & Co-operatives, Government of Bangladesh vs Md Afzal 40 DLR(AD) 154.

Sections 133 & 135—

Observationsmade in CPSLA No. 233 of 1979 by the Supreme Court (AD) while refusing leavethat enquiry under section 133 of the Ordinance must be held before supersedinga Pourashava under section 135.

RuralDevelopment & Co-operatives, Government of Bangladesh vs Md Afzal 40 DLR(AD) 154.

Sections 133 & 135—

Action takenagainst the chairman and the members is colourable exercise of power based onthe report of an enquiry made, which was not one contemplated by section 133 ofthe Ordinance.

RuralDevelopment & Co-operatives, Government of Bangladesh vs Md Afzal 40 DLR(AD) 154.

Sections 135 and 135(2)(b )—

Since it isa case of suppression of Pourashava, all the affected persons namely, theChairman's and the elected commissioners' interests have been affected and assuch all of them were entitled to notices before suppression.

A principleof natural justice is to be understood in the context of the relevant law andfacts of each case. There is no dispute with this proposition.

RuralDevelopment & Co-operatives, Government of Bangladesh vs Md Afzal 40 DLR(AD) 154.

Section 152—

Notice underthe section is a pre-requisite in all circumstances for institution of a suitagainst Pourashava for anything done in official capacity.

NarayanganjPourashava vs Abdur Razzak 46 DLR 295.

Section 152—

Noticemandatory or directory—True, there is no consequential provision fornon-service of notice. But when the language absolutely prohibits suit withoutprior notice, the suit becomes still-born and has to be buried at itsinstitution. The provision is therefore mandatory.

NarayanganjPourashava vs Abdur Razzak 46 DLR 295.

Prevention of Corruption Act, 1947

Preventionof Corruption Act [II of 1947]

Section 5(l)(d) & (e)—

Embezzlementof State money by a person who was the President of the country and using thesame for his personal benefit or living or having properties disproportionateto his known source of income will definitely come within the ambit of moralturpitude.

HussainMohammad Ershad vs Zahedul Islam Khan 54 DLR (AD) 1.

Printing Presses and Publication (Declaration and Registration) Act, 1973

PrintingPresses and Publication (Declaration and Registration) Act [XXIII of 1973]

Declarationin respect of authentication of a newspaper can be done as much by anAdditional District Magistrate as the District Magistrate under section 12 ofthe Act. By virtue of the definition an Additional District Magistrate is alsoincluded in the term District Magistrate.

Waliul BariChowdhury vs District Magistrate, Kushtia 38 DLR (AD) 256.

Section 20(d)—

In theinstant case, the authority regretted the mistake occurred in the news itempublished on 26-3-2002 in the next two issues of the newspaper on the firstpage published on 28 and 29th March, 2002 as corrigendum. There is malafide inthe mistake referred to in the issue of the newspaper published on 26-3-2002.

Hanif Shaikh(Md) vs Government of Bangladesh and others 56 DLR 645.

Proclamation of Emergency

Proclamationof Emergency

—Proclamationof Emergency made on 6th September, 1965 was revoked on 16th February 1969 butsimultaneously the Enemy Property (Continuance of Emergency Provisions)Ordinance (I of 1969) was promulgated. Thereafter the provisions of thisOrdinance (I of 1969) was repealed by the promulgation of the Enemy Property(Continuance of Emergency Provisions) (Repeal) Ordinance, 1974 followed byEnemy Property (Continuance of Emergency Provisions) (Repeal) Act, (XLV of1974).

PriyatoshTalukdar vs Asstt. Custodian 39 DLR (AD) 178.

—Proclamationof Emergency was revoked but certain provisions relating to "enemyproperty" continued.

PriyatoshTalukdar vs Asstt. Custodian 39 DLR (AD) 178.

Proclamation of Withdrawal of Martial Law, 1986

Proclamationof Withdrawal of Martial Law, 1986

Paragraph 3—

Since thewords "as if the sentences were passed by him" appearing in paragraph3 of the Proclamation relate to execution of sentence of death, they need begiven an interpretation favourable to the condemned prisoners. Pursuant to suchinterpretation the Sessions Judge is under an obligation to follow theprovision of section 374 CrPC and make a reference to the High Court Divisionfor execution of the sentence passed by the Martial Law Court before issuingwarrant therefor.

Abdul Basetand another vs Bangladesh 47 DLR 203.

Article 5—

As there isno forum for disposal of the Review Application upon withdrawal of Martial Law,the President is empowered to create a forum for the purpose of disposal of theReview Application by exercising his power as per Article 5 of the Proclamationfor the withdrawal of Martial Law.

MahtabuddinAhmed vs The Principal Secretary, President's Secretariat 42 DLRJ.

Article 5—

Disposal ofreview application: Para IA of the repealed MLO 9 created a right in theaggrieved person to file a review petition—the word 'may' in the context of anorder made under the MLO ought to be read as "shall"—CMLA is bound toconsider and dispose of review application which has been filed to him. GeneralClauses Act (X of 1897) has been made applicable to the Martial Law Orders byreason of para 19(9) of the 4th Schedule to the Constitution enacted by theConstitution (Seventh Amendment) Act, 1986—Under the proclamation of Withdrawalof Martial Law, MLO No. 9 was repealed but the remedy of review provided underMLO 9 survived. •It· is obvious that unless some provision was made fordisposal of cases awaiting review the effect to the Proclamation could not befully given. In order to harmonise the effect of repeal of the MLO with theoperation of the Proclamation of Withdrawal of Martial Law, in thecircumstances as in the present case, provision has been rightly made in para 5of the Proclamation enabling the President to make an order where necessary.

PrincipalSecretary vs Mahtabuddin Ahmed 42 DLR (AD)214.

Article 5—

Order ofretirement—Application for review—In view of the decision in 42 DLR (AD) 214the respondents are to communicate the result of the review application of thepetitioner. If the petitioner's application is still undisposed of, thegovernment may· take ·step to dispose of the application by creating anappropriate Review Forum within3 months from the date ofreceipt of this order.

Dewan AbdulKarim vs Secretary, Ministry of Home Affairs and ors (Spl. Original) 54 DLR231.

Supreme Court Judges (Terms & Conditions of Service) Order, 1973

SupremeCourt Judges (Terms & Conditions of Service) Order [PO No. 21 of 1973]

Article 10—

Salary ofSupreme Court judges being exempted from taxation it could not be included forthe purpose of taxation while computing their total income. This position couldnot be affected by the notification issued in exercise of powers under theIncome Tax Act, for, the Act cannot control the provision of the President'sOrder that has provided for the exemption and achieved the status ofsub-constitutional legislation.

Commissionerof Taxes vs Shahabuddin Ahmed 42 DLR (AD) 162.

Trust Act, 1882

Trust Act[II of 1882]

Section 20B—

Charitablesociety can invest its unspent money for getting more money to be spent incharity and when there is absolutely no bar under the Societies RegistrationAct and when the Memorandum of Association of a society has authorised the sameto invest their money not immediately required the same may be invested.

BRAC vsProfessor Mozaffar Ahmed 54 DLR (AD) 36.

Sections 71 & 74—

Framing ofissues on Jaw alone when not proper—since the whole question centers roundwhether the trust is a public trust or a private trust and evidence has to beled in support of such issue, framing of issue on point of law alone should notbe allowed. All the issues relating to law and facts must be framed togetherfor the greater interest of the parties.

Naresh LalSaha vs Bhupati Mohan Roy 42 DLR 485.

Sections 73 & 74—

Sections 73and 74 are not intended to apply to a contentious case, where proceeding by wayof suit is appropriate, but cases appropriate to a summary procedure where thefacts are not disputed or cannot reasonably be disputed.

KhalidHamidul Huq vs Nafisa Chowdhury and others 47 DLR (AD) 104.

ARMS ACT, 1878 AND ARMS RULES, 1924

Citation: 40 DLR (AD) 170,40 DLR 251, 40 (AD) 170,44 DLR 110,41 DLR 524, 4I DLR 524, 40 DLR 493,44 DLR 159,43 DLR 150

Case Year: 1878

Subject: ARMS

Delivery Date: 2018-01-08

Arms Act, 1878

Sections 16 & 18—
Appellant was neither given any notice of enquiry nor was he given any hearing before cancellation of arms—Enquiry undertaken on a sprawling private complaint made by the local upazila Chairman.
No emergency or any other compelling situation preventing giving of notice of enquiry lo the appellant—Nothing on record to show that any specific case was started against the appellant involving alleged misuse of revolver —Inquisitorial nature of enquiry aggravating the degree of unfairness—Principles of natural justice to be observed in proceedings affecting "the person or property or other right of parties concerned "—court adds a rider to the observance of the principle of natural justice that so far as exercise of power under section 18 of the Arms Act is concerned, the absence of a prior notice or hearing may not always invalidate the order passed thereunder if the security of the public peace is involved.
Sk. Ali Ahmed Vs. Secretary, Home Affairs 40 DLR (AD) 170.

Sections 16(1) and 19(1)—
The Sub-Divisional Magistrate, Shariatpur had no jurisdiction whatsoever to cancel the license s of the guns in question under section 18(a) of the Arms Act or under any provision of the Arms Rules of 1924. As the license s of the guns in question were not cancelled by any legally competent authority such as the District Magistrate or by any authorised officer to whom he is subordinate as required under the provisions of Arms Act or the Arms rules, cancellation thereof by the SDO is illegal. Conviction under sections 16(1) and 19(1) of the Arms Act read with section 26 of the Special Powers Act is not sustainable in law.
Anawar Hossains. Vs State 40 DLR 251.

Section 18—
Cancellation and suspension of license for arms—The necessity of recording reasons by the appropriate authority in writing for the cancellation of the license to be emphasized as a general rule—If the appropriate authority chooses not to make its order a speaking one and merely relies on the materials on record, its order stands a greater risk of being struck down.
Sk. Ali Ahmed Vs. Secretary Home Affairs 40 (AD) 170.

Section 18—
Orders passed by the District Magistrate cancelling license s of guns of the petitioners without giving them any notice and opportunity of being heard and giving no reason for cancellation are illegal being violative of the principal of natural justice.
Rezaul Karim (Md) Vs. Ministry of Home Affairs 44 DLR 110.

Section 19A—
Uncorroborated testimony of an accomplice cannot be basis of conviction of an accused.
Kazi ibrahim Vs State 41 DLR 524.

Section 19A—
A person cannot be convicted on surmises and conjectures and from any analogical deduction.
Kazi Ibrahim VS. State 4I DLR 524.

Section 19(f)—
Appellants leading the police to place of occurrence and recovery of arms—Appellants cannot be held guilty of the charge of unauthorised possession of arms under section 19(f) of the Arms Act.
Abdul Khaleque Vs. State 40 DLR 493.

Section 19(f)—
Recovery of arms—culpability—mere knowledge of the accused that the arms were lying at the spot pointed out by him in the absence of evidence that he himself kept the same there or that he had exclusive possession over it, he cannot be made liable under section 19(f).
Abul Hashem Master Vs. State 44 DLR 159.

Arms Rules, 1924

Column 2 of the Table Schedule I as amended by notification No 896—Section II dated Dhaka the l9th November l973—The decision in this case having depended on findings of facts as to whether the seized arm were recovered from the possession of the petitioner, whether the same came within the exception provided for and covered by amnesty, if any, declared by the government, the extraordinary power to prevent the abuse of process of the court is not required to be exercised.
Hossain Mohammad Ershad Vs. State 43 DLR 150

BANK COMPANY ACT, 1991

Citation: 52 DLR 1, 56 DLR 73, 52 DLR (AD) 61, 52 DLR (AD) 61, 52 DLR (AD) 159, 52 DLR 1, 52 DLR 577, 45 DLR 8, 56 DLR 253, 52 DLR 577, 52 DLR 577, 52 DLR (AD) 71, 53 DLR (AD) 70, 53 DLR (AD) 70, 51 DLR 231, 52 DLR 36, 53 DLR (AD) 107

Case Year: 1991

Subject: BANK COMPANY

Delivery Date: 2018-01-30

Bank Company Act, 1991

[XIV of 1991]

Section 2(ga) (ga)-

Defaulting borrowers themselves form a separate and distinct class and legislature can make stringent law against them and such law is not violative of the fundamental rights.

Anwar Karim and others vs Bangladesh Bank and others 52 DLR 1.

Section 15 Ka Ka-

Bank Companies (Amendment) Act 2003 introduced prospectively will have no bearing upon the AGMs for the years in question but ignoring this aspect the contemner opposite parties repeatedly hammered upon the Chairman designate to give his opinion as to the interpretation of this new section and the circular of the Bangladesh Bank. It appears in the name of seeking advice or guideline from the Chairman designate the opposite parties have obstructed the course of justice and flouted this court's order.

Akhteruzzaman Chowdhury vs Hamidul Huq, MD, UCBL and another (Statutory) 56 DLR 73.

Section 17-

In issuing the notices under section 17 of the Act the lender Bank acted neither as a substantive authority nor as a Court nor as a tribunal. It acted purely in an executive capacity under an authority granted by a statute.

ASF Rahman and others vs Bangladesh Bank and others 52 DLR (AD) 61.

Sections 17, 45 and 49-

The Bank Companies Act clearly invests Bangladesh Bank with a strong regulatory power over the functioning and business of banking companies.

ASF Rahman and others vs Bangladesh Bank and others 52 DLR (AD) 61.

Section 17(1)-

Bank director-default of payment-when entire loan money is not paid within the specified time the directorship of the defaulter loanee is vacated on the expiry of the period of two months notwithstanding the subsequent rescheduling of the loan and payment of 10% thereof.

Yaqub Mohammad and another vs Bangladesh Bank and others 52 DLR (AD) 159.

Section 27(Ka)-

It is not the intention of the law to classify a director who was not instrumental in taking the loan and responsible for mismanagement of the affairs of the company to classify him as the defaulting borrower.

Anwar Karim and others vs Bangladesh Bank and others 52 DLR 1.

Sections 29 and 45-

If a director of a Bank or a relation of such a director is a defaulter in respect of his personal or corporate loan then he or the enterprise in which he has vested interest is not entitled to any reschedulement of loan and a "No objection" in that case by the Bangladesh Bank for reschedulement will be illegal.

KM Zakir Hossain vs Bangladesh Bank and others 52 DLR 577.

Section 37-

Publication of outstanding dues -Bangladesh Bank's competence to make publication-The argument that since the Banking Companies Act came into force at a later time the statement regarding the position of outstanding dues of an account-holder as on 31.12.90 has no substance as section 37 without putting any time-limit has empowered the Bank to publish the information in public interest.

Paul and Co vs Bangladesh Bank 45 DLR 8.

Section 45—

When a bank claims interest in excess of what is permitted by circular/direction of the Bangladesh Bank, the Court can always give relief to the aggrieved party.

Uttara Bank Ltd vs Aysha Siddiqua and others 56 DLR 253.

Section 45(2)-

Under section 45(2) of the Bank Companies Act the Bangladesh Bank has discretion to modify its own order or circular on a representation made to it or on its own motion.

KM Zakir Hossain vs Bangladesh Bank and others 52 DLR 577.

Section 45(1)(d)-

The Bangladesh Bank has power to give directions under the Bank Companies Act to secure proper management of any bank company generally.

KM Zakir Hossain vs Bangladesh Bank and others 52 DLR 577.

Section 46-

In view of the existence of the report and recommendation it cannot be said that there was no material before the respondent No.I to form the opinion concerning the appellant or that the said opinion was merely fanciful.

Abdur Rahim Chowdhury vs Bangladesh Bank and others 52 DLR (AD) 71.

Section 46-

Bank Companies Act has given power to Bangladesh Bank for removal of the Chairman, Directors and the Chief Executive of the bank in public interest or to prevent detrimental conduct of the company by any of the directors or the Chairman.

Bangladesh Bank and others vs Zafar Ahmed Chowdhury and another 53 DLR (AD) 70.

Section 46-

When Bangladesh Bank was fully aware of the purport of the order passed by this Division they ought not to have taken recourse to section 46 of the Act.

Bangladesh Bank and others vs Zafar Ahmed Chowdhury and another 53 DLR (AD) 70.

Sections 46 and 47-

Whether there was sufficient good reason to form an opinion cannot be looked into by the court as that would be substituting the opinion of the Bangladesh Bank. The Court cannot accept the contention that the Bangladesh Bank could not have arrived at an opinion or satisfaction to suspend the petitioner on a single transaction.

Abdur Rahim Chowdhury vs Bangladesh Bank, Dhaka and others 51 DLR 231.

Section 103-

When a joint account is opened and there is specific direction that any of the joint account-holders or survivors may operate the account then the bank is bound to follow it in case of death of one of the account-holders.

Arab Bangladesh Bank Ltd vs Ziauddin and others 52 DLR 36.

Section 103-

No injunction can be granted against operation of bank account and withdrawal of the money in deposit as per terms of contract. The account being opened with a specific condition setting the act of operation of payment, the Bank is bound to comply with the condition on which it has accepted the deposit.

Ziauddin Ahmed and others vs Arab Bangladesh Bank and others 53 DLR (AD) 107.

DRUGS (CONTROL) ORDINANCE, 1982

Citation: 42 DLR 493, 45 DLR 640.

Case Year: 1982

Subject: DRUGS

Delivery Date: 2018-01-13

Drugs (Control) Ordinance, 1982
[VIII of 1982]

Sections 8 and 16—
Interpretation of Statutes—The order of the appellants’ conviction by the Judge of Drug Court is based on his finding of “keeping in stock and exhibiting the medicine (banned one) in the shop”. Neither section 8 nor section 16 contains the quoted expression. Penal statute must be strictly construed and a court in order to punish an accused must not introduce any expression which has not been used by the makers of the law. The impugned order must therefore be struck down.
Dr. Golam Rahman Vs. State 42 DLR 493.

Section 23—
Instead of holding the trial before the Drug Court it was held before the wrong forum of Special Tribunal which is no trial in the eye of law. The order of conviction and sentence is therefore set aside and the case is sent back to the Drug Court for fresh cognizance and trial.
Shahidullah , 2. Jane Alam Vs. State 45 DLR 640.

ADMINISTRATION OF JUSTICE ACT, 1956

Citation: 38 DLR 30, 38 DLR 30, 38 DLR 30, 38 DLR 30, 38 DLR 30.

Case Year: 1956

Subject: ADMINISTRATION OF JUSTICE

Delivery Date: 2018-01-22

Administration of Justice Act, 1956

Section 3(4)

England's Admiralty Court was conferred jurisdiction by section 3(4) of Administration of Justice Act of 1956 to arrest any vessel or property of the defendant though it had no concern with the cause of action. But a similar power to arrest any ship which is not the subjectmatter of the suit cannot be exercised by the Admiralty Court of Bangladesh by virtue of the power given to the England Admiralty Court by section 3(4).

Kings Shipping Trading Co vs Messrs LS Line & Ors 38 DLR 30.

—Jurisdiction conferred by section 6 of the Admiralty Court Act of 1861 which is exercised by the Admiralty Court of Bangladesh is so exercised under the provisions of Colonial Courts of Admiralty Act, 1890 and the Colonial Courts of Admiralty Act (India), 1891.

Kings Shipping Trading Co vs LS Line & Ors 38 DLR 30.

—Superior Courts of the sub-continent, including Bangladesh Supreme Court never exercised admiralty jurisdiction on the basis of practices followed by the England Admiralty Court which the latter court continued to exercise until the year 1840 when by the Administration of Justice Act of 1840 the law about exercise of admiralty jurisdiction was defined by that Act of 1840.

Kings Shipping Trading Co vs Messrs LS Line & Ors 38 DLR 30.

—Practices as followed by England's Admiralty Courts were for long time discontinued and it was after that on the basis of the statute laws that these courts began exercising admiralty jurisdiction.

Kings Shipping Trading Co vs Messrs LS Line & Ors 38 DLR 30.

—Bangladesh Admiralty Court exercises jurisdiction given to it under section 6 of the Act of 1861 by virtue of the provisions of section 2(2) of Colonial Court of Admiralty Act, 1890 and as such Administration of Justice Act, 1956 is not applicable in Bangladesh.

Kings Shipping Trading Co vs Messrs LS Line & Ors 38 DLR 30.

BCS SENIORITY RULES, 1983

Citation: 46 DLR (AD) 19.

Case Year: 1983

Subject: BCS SENIORITY

Delivery Date: 2018-01-30

Rules 4, 5 and 6-

These Rules clearly indicate that seniority in the case of ad hoc appointees on regularisation was left to be determined in future by specific rules ....

Bangladesh vs Md Azizur Rahman 46 DLR (AD) 19.

CONSTITUTION OF PAKISTAN, 1962

Citation: 40 DLR (AD) 178,40 DLR (AD) 178

Case Year: 1962

Subject: CONSTITUTION OF PAKISTAN

Delivery Date: 2018-01-09

Constitution of Pakistan, 1962

Article 98 read with Constitution of Bangladesh, Article 102—
since 1962 prerogative writs were omitted and the constitutional jurisdiction to issue necessary orders on an application was conferred on the High Court (Division) in its own terms.
Radical difference in language between Article 170 of 1956 Pakistan Constitution and Article 98 of 1962 Pakistan Constitution in respect of the jurisdiction conferred on the High Courts.
Sajeda Parvin Vs. Government of Bangladesh 40 DLR (AD) 178.

Article 98(2)(b) read with Constitution of Bangladesh, 1972 Article 102(2)(b)(i)—
The language of Article 98 of 1962 Pakistan Constitution which has been imported into Article 102 of Bangladesh Constitution of 1972 has been couched in such a manner which is untrammeled by the formalities or technicalities of either section 491 of the Code of Criminal Procedure or the old prerogative writ of Habeas Corpus. Ref. 21 DLR (SC) 1(11).
Sajeda Parvin Vs. Government of Bangladesh 40 DLR (AD) 178.

VILLAGE COURTS ORDINANCE, 1976

Citation: 44 DLR 77.

Case Year: 1976

Subject: VILLAGE COURTS

Delivery Date: 2018-01-18

Village Courts Ordinance, 1976
(LXI of 1976)

Section 3—
Jurisdiction—When trial by Magistrate and hearing of appeal by the Sessions Judge coram non judice—All cases relating to offences’ specified in Part I of the Schedule to the Ordinance shall be exclusively triable by a village Court and no criminal Court shall have jurisdiction to try any such case. Trial of the accused for offences falling under the schedule by the Magistrate and hearing of the appeal as done by the Sessions Judge are absolutely without jurisdiction. If a court has no jurisdiction to try a case, the question of either submitting to the jurisdiction or raising objection to its jurisdiction would not arise. Parties by their mutual consent can neither confer a jurisdiction which does not exist in law nor can take away a jurisdiction which so exists. Jurisdiction is a question of statute and not of consent.
Dr. Joynal Abedin Vs. State 44 DLR 77.

BANGLADESH SERVICE RULES

Citation: 48 DLR (AD) 40, 49 DLR 298, 51 DLR (AD) 112, 53 DLR (AD) 41, 54 DLR 566.

Case Year: 1983

Subject: BANGLADESH SERVICE

Delivery Date: 2018-01-28

Bangladesh Service Rule

Rule 5(57)-

"Traveling allowance"-It varies upon the circumstances of each journey undertaken by an employee.

Government of People's Republic of Bangladesh represented by the Secretary Ministry of Labour and Manpower.

Bangladesh Secretariat Dhaka vs Hasan Movies Ltd and others 48 DLR (AD) 40.

Rule 21-

A vested right was created in favour of the petitioner to the post of Director General of Bangladesh Shilpakala Academy and such a right cannot be taken away by cancelling his contractual service as Principal of Music College as he joined the College keeping his lien to his service as the Director General. Since his lien was kept intact and it was never cancelled, he ought to have been allowed to join his former post as Director General of Bangladesh Shilpakala Academy.

Azad Rahman vs Government of the People's Republic of Bangladesh and others 49 DLR 298.

Rule 24(1)-

lf Class III and Class IV employees have been exempted from operation of rule 24(1) then it is an improvement in their general condition of service. If any authority violates this improved condition of service then it is a clear violation of the general conditions of service of that employee.

Government of Bangladesh and Ors vs Mohammad Faruque 51 DLR (AD) 112.

Rule 72(b)-

The review forum having found the respondent honourably acquitted the Tribunals below rightly held that the respondent is entitled to the arrear pay and allowances.

Secretary, Ministry bf Establishment vs AM Nurunnabi 53 DLR (AD) 41.

Bangladesh Service Rules, 1983

Rule 342(2)-

Duty to pay pensions to a person who has worked for the stipulated period of time remains an undischaged contractual obligation-Where the employee retires or is terminated there must exist provision for payment of pension, describing the mode and timing of payment of pension to terminated employees, else courts will imply terms to that effect.

MA Jalil vs Rupali Bank Ltd and others 54 DLR 566.

INDUSTRIAL RELATIONS ORDINANCE, 1969

Citation: 42 DLR 293, 42 DLR 293, 42 DLR 293, 43 DLR 137.

Case Year: 1969

Subject: INDUSTRIAL RELATIONS

Delivery Date: 2018-01-13

Industrial Relations Ordinance, 1969
[XXIII of 1969]

Section 3—
The corporation has a right to frame its own Rules concerning the condition of employment of workers as provided under the proviso to section 3 of the Act—Rules not found invalid—Labour Court travelled beyond the pleading of the party.
Brigadier Choudhury Khalequzzaman Vs. Sk. Shahabuddier 42 DLR 293.

Section 26—
The Labour Court has no jurisdiction to deteramine the quauteem under section 26—Labour Court can not punish an alleged offender to failure to comply with an indefinate order.
Brigadier Choudhury Khalequzzaman Vs. Sk. Shahabuddin 42 DLR 293.

Section 34—
The complainant workmen may have the quantum of termination benefit fixed or determined by the process of law may be by filing an application under section 34 of the Industrial Relations Ordinance—Labour Court is not to decide the said quantum under section 26 of the Standing Orders Act.
Brigadier Choudhury Khalequzzaman Vs. Sk. Shahabuddin 42 DLR 293.

Sections 36(3) & 64—
Labour Court and a Magistrate, 1st Class, having jurisdiction in the relevant matter shall have concurrent jurisdiction to try an offence punishable under the Industrial Relations Ordinance. Under section 64 of the Ordinance a Magistrate 1st Class, has also been invested with power to try any offence under this Ordinance. The decision reported in 1985 BLD (AD) 278 is not applicable in the facts of the present case.
Kamaluddin Chowdhury Vs. Mashiudowllah 43 DLR 137.

CHILDREN ACT, 1974

Citation: 42 DLR (AD) 89,45 DLR 643,43 DLR 163,44 DLR 500,42 DLR 491

Case Year: 1974

Subject: CHILDREN

Delivery Date: 2018-01-08

Children Act, 1974

Section 2(f) —
In view of the definition of child as appearing in section 2(f) appellant Nasir ought to have been tried by Juvenile Court. Trial of child along with adult is forbidden by law. The trial of the appellant being held not by Juvenile Court is hit by want of jurisdiction.
Md. Nasir Ahmed Vs. Stare 42 DLR (AD) 89.

Section 2(f), 6 and 8—
No Child is to be charged with or tried for any offence together with an adult. The child must be tried in the Juvenile Court and not in the ordinary court .Only the adult can be committed to the Court of Sessions and the Juvenile Court will take cognizance of juvenile offenders.
State Vs. Deputy Commissioner 45 DLR 643.

Sections 2(f) & 6(1)—
Joint trail of applicant Sunil, a child, along with the appellants being adults was illegal.
Kadu VS State 43 DLR 163.

Sections 2(f),55—58 and 61—
offence against child—question of custody—if an offence is committed against a child before its attaining the age of 16, the court has the power to keep it in custody till the child attains the age of 18 or till the proceeding in respect of the crime is terminated.
Sumati Begum Vs. Rafiqullah 44 DLR 500.

Sections 2(b), 3 & 6—
The word "cinematograph" is comprehensive enough to include a video—cassette player. It means a composite equipment used for production, projection and exhibition of motion picture film. There is nothing to show that the timber 'Aroth' from where the incriminating materials were seized was a place licensed under the Act and therefore the contention raised against the conviction has no substance.
Md. Aktarul Vs. State 42 DLR 491.

ACQUISITION AND REQUISITION OF IMMOVABLE PROPERTY ORDINANCE, 1982

Citation: 41 DLR 326, 41 DLR 326, 41 DLR 326, 50 DLR (AD) 15, 41 DLR 326, 46 DLR 378, 41 DLR 326, 41 DLR 326, 42 DLR 66, 42 DLR 66, 46 DLR (AD) 63, 40 DLR 232, 50 DLR (AD) 106, 52 DLR (AD) 176, 52 DLR 125, 52 DLR 516, 42 DLR 66, 52 DLR 516, 49 DLR 160, 40 DLR 232,

Case Year: 1982

Subject: ACQUISITION AND REQUISITION OF IMMOVABLE PROPERTY

Delivery Date: 2018-01-22

Acquisition and Requisition of Immovable Property Ordinance, 1982

Section 2(b)

"Deputy Commissioner" includes an Additional Deputy Commissioner and any other officer authorised by him.

Under section 3 of the Ordinance it is the Deputy Commissioner who has to cause a notice to be published under the said Ordinance, Under section 2(b) "Deputy Commissioner" includes an Additional Deputy Commissioner and any other officer authorised by the Deputy Commissioner to exercise any power conferred, or to perform any duty imposed, on the Deputy Commissioner by or under this Ordinance.

Sankar Gopal Chatterjee vs Addi Commissioner, Dhaka Division 41 DLR 326.

Section 3

The law of acquisition gives the Deputy Commissioner power to acquire property in two likely situations; if the property is needed or if the property is likely to be needed.

The use of two alternative expressions in the notice under section 3 is indicative of a lack of application of mind and the notice under section 3 is liable to be struck down on this ground.

The law of acquisition gives the Deputy Commissioner the power to acquire property in the likelihood of two situations. First, if the property is needed. Or, if the property is likely to be needed. A property is either needed or it is likely to be needed but while acquiring a property the Deputy Commissioner cannot keep both the alternatives in his pocket. He has to choose between the two. If he keeps both the options open, then he does not know whether the property is needed for immediate use or it is likely to be needed for some future use. The use of both these alternative expressions in the notice under section 3 is indicative ofa lack of application of mind and the notice under section 3 is liable to be struck down on that ground as well.

Sankar Gopal Chatterjee vs Addi Commissioner Dhaka Division 41 DLR 326.

Section 3

Acquisition for a co-operative society per se is not a public purpose. The need to state the precise public purpose in the body of the notice under section 3 is imperative. Besides, under section 17 no acquired property under the Ordinance shall be used for any purpose other than the purpose for which it is acquired.

Acquisition for a co-operative society per se is not a public purpose. The purpose for which the Co-operative Society proposes to use the acquired land is the ultimate test for a decision as to whether the acquisition is for a public purpose or not. There is a total lack of disclosure in the notice under section 3 as to for what purpose the Co-operative Society needs the acquired land. The need to state the precise public purpose in the body of the notice under section 3 is imperative, because under section 4 of the Ordinance any person interested in the disputed property has the right to object to the acquisition of the property challenging the public purpose stated therein, but if no specific public purpose is stated in the notice, then the right given to the objector under section 4 is rendered nugatory and illusory. Besides, under section 17 no property acquired under the Ordinance shall be used for any purpose other than the purpose for which it is acquired without the prior approval of the Government.

Hence on the ground of lack of public purpose the acquisition proceedings fail.

Sankar Gopal Chatterjee vs Additional Commissioner, Dhaka Division 41 DLR 326

Sections 3 and 4

The objection raised in the facts of the case is merely technical and does not touch upon the genuineness of the requirement which is obviously of an immediate nature. It is on record that the petitioner filed successive objections for consideration. There being a consideration by the acquiring authority the impugned judgment need not be interfered.

Zahed Hossain Mia vs Deputy Commissioner 50 DLR (AD) 15.

Sections 3 and 4(3)(b )

The notice under section 3 suffers from a total lack of jurisdiction.

When the Additional Commissioner directed the Deputy Commissioner, Kishoregonj to proceed from the stage of section 4(3)(b) of the Ordinance, there is a presumption thathe rejected the petitioner's contentions upheld by the Additional Deputy Commissioner. In all fairness the Additional Commissioner should have given a finding on those issues. Without disposing of those issues the Additional Commissioner could not have directed the Deputy Commissioner, Kishoregonj to proceed under section 4(3)(b) of the Ordinance. As we have independently found that the notice under section 3 suffers from a total lack of jurisdiction, no need to dwell at length on this point.

Sankar Gopal Chatterjee vs Additional Commissioner, Dhaka Division 41 DLR 326,

Sections 3 and 6

The description of the land sought to be acquired are vague, indefinite, unspecified and uncertain and did not enable the owners to make an effective objection in writing against the order of acquisition and the same has rendered the acquisition proceeding illegal.

Haji Abdur Rahim vs Secretary, Ministry of Land Administration and Land Reforms 46 DLR 378.

Sections 3 and 15

The provision of section 15 is mandatory-An agreement with the nonGovernment requiring body is a sine qua non for the exercise of power, before the Deputy Commissioner acquires the jurisdiction to publish a notice under section 3 of the Ordinance.

The provision of section 15 is not directory but mandatory. Before the Deputy Commissioner acquires the jurisdiction to publish a notice under section 3 an agreement with the non-Government requiring body is a sine qua non for the exercise of such power. It is a condition precedent. It cannot be whittled down by any device. It cannot be even accepted that an acquisition proceeding may be started without any agreement, but if a subsequent agreement is reached then it amounts to validation. The principle of subsequent validation cannot be entertained in a matter where the property rights of the citizen are involved.

Sankar Gopal Chatterjee vs Additional Commissioner Dhaka Division 41 DLR 326.

Sections 3 and 1

The acquisition proceedings are a colourable exercise of power as they were started without any agreement with the requiring body under sectiori 15 of the Ordinance and for circumventing a valid decree of the Civil Court.

Sankar Gopal Chatterjee vs Addi Commissioner Dhaka 41 DLR 326.

Sections 7 and 8

Assessment of award - Under section 7 the Deputy Commissioner is to make the award and while making it he must determine the compensation on matters as mentioned in section 8. The question of agreement between the Awardee and the Requiring Body is not very relevant within the scheme of the Ordinance in this regard. This is unlike the provision in the Emergency Requisition of Property Act, 1948.

Khaled Akbar vs Govt of Bangladesh 42 DLR 66.

Sections 8, 12(1) and 28

Petitioner's case is that the Award passed by the Deputy Commissioner is inadequate and not based on matters to be considered in determining the assessment of the award under section 8 of the Ordinance, by reducing the amount as awarded by Arbitrator in respect of each of the items, viz market value of the property, the question of damage by severance of the property from the other properties of the petitioner and on other necessary considerations, as contemplated under section 8 of the Ordinance has rightly been done.

Khaled Akbar vs Govt of Bangladesh 42 DLR 66.

Sections 10 and 12

The provision of section 12 will come into play only when the compensation is not paid or not kept in deposit account under section 10(1). Under section 12 no obligation as such is placed on the requiring body to deposit compensation within six months from the date of decision for acquisition.

Bangladesh vs Subash Chandra Das 46 DLR (AD) 63.

Sections 10(2) and 30

The Arbitrator does not exercise a judicial function in course of inquiry or investigation into the amount of compensation although he is expected to act within judicial norms.

Begum Lutfunnessa vs N Ahmed 40 DLR 232.

Section 12

The question of abatement under section 12 of the Ordinance is not relevant in as much as there was no averment in the Writ Petition that no compensation was paid under sub-section (I) of section IO or deposit made in the Public Account of the Republic as per provision of subsection (2) of section 10.

Subash Chandra Das & ors. vs Bangladesh, represented by the Secretary, Ministry of Land Administration and Land Reforms, Government of the People's Republic of Bangladesh and others 50 DLR (AD) 106.

Section 12

Non-payment of compensation within one year from the date of decision of the Government for acquisition ofland as contemplated under section 12 of 1982 Ordinance does not render such land liable to be released in that section 12 is riot applicable to the facts of the instant cases which were started long before the Ordinance came into force in view of the provision of amended section 79 of the 1953 Act as no retrospectivity can be read into section 12 of the 1982 Ordinance.

Jamir Ali (Md) and others vs Secretary, Ministry of Land & others 52 DLR (AD) 176.

Article 12

In spite of repeal of sections 93A and 93B of the Act the pending acquisition of the disputed land shall be continued under the aforesaid provisions as if those have not been repealed and the provision of section 12 or other provisions of Acquisition and Requisition of Immoveable Property Ordinance shall not apply to the acquisition proceedings started under section 93A of the Act.

Jamir Ali (Md) and others vs Secretary, Ministry of Land and others (Spl. Orginal) 52 DLR 125.

Sections 27 & 28

The Arbitrator appointed under section 27 of the Ordinance is a persona designata, i.e. a person designated not by name but by as one of a class. Such Arbitrator appointed under section 28 is not a civil Court at all within the meaning of the Code and, as such, he is not a court subordinate to this court. So, the instant revision application under section 115 of the Code is also not maintainable.

Thomarshu alias Majhi vs Bangladesh 52 DLR 516.

Sections 27 and 34(2)

Member, Arbitration Appellate Tribunal to hear the Arbitrator's. decision. There is no conflict between the two expressions "Persona designata" and "Court"-if the function of the designated person is judicial in character then it is a Court.

District Judge of a District is a Member, Appellate Tribunal. Tribunal for hearing of the appeal from the decision passed by the Arbitrator appointed under section 27 of the Ordinance. If the function is a judicial one then it is amenable to the jurisdiction of this court under section 115 of the Code of Civil Procedure, otherwise not.

Khaled Akbar vs Govertment of Bangladesh 42 DLR 66.

Section 28

The petitioner failed to show that he received the money of the award 'under protest' as found by the Arbitrator and therefore he is not a person entitled to make the application for revision of the award and for this reason alone his application under section 28 is simply maintainable.

Thomarshu alias Bangladesh 52 DLR 516.

Section 31

It is an universal law that a restrospective operation is not to be given to a statute so as to impair an existing right.

Former Modern Shishu Hospital, presently Institute of Child Mother Health vs Abdus Salam, son of Late Yusub Molla and another & 5 others 49 DLR 160.

Sections 31 and 32(3)

In view of the deeming provision in section 32(3) of the Ordinance the award of the Arbitrator is appealable as a decree and also executable as a decree. But the status of the Arbitrator has not undergone any change thereby. He is not elevated to the status of a Civil Court by virtue of deeming clause (3) of section 33.

Begum Lutfunnessa vs N Ahmed 40 DLR 232.

Sections 31 and 34

Since Legislature is competent to legislate fixing amount of compensation as well as manner of assessment of compensation, the amendment made in sections 31 and 34 of the Ordinance cannot be said to have violated the right of the petitioners to have adequate compensation in respect of the land acquired under the Ordinance.

Shahjahan Ali Khan (Md) and others vs Government of Bangladesh and others 52 DLR 99.

Sections 32(3) and 36

Award given by an Arbitrator shall be deemed to be a decree and the statement of the ground of such award to be a judgment within the meaning of section 2(2) and section 2(9) of the Code of Civil Procedure respectively. The Arbitrator shall have all the powers of a Civil Court under section 36 of fhe Ordinance No. 2 of 1982.

Begum Lutfunnessa vs N Ahmed 40 DLR 232.

Section 34(1)

As appeal from the order making award by the Arbitrator lies to the Arbitration Appellate Tribunal; the present appeal before the High Court Division is incompetent.

Bangladesh vs Md Mazibur Rahman 47 DLR 559.

Section 34(3)

Whether a revision under section 115 of the Code of Civil Procedure is maintainable in respect of the judgment passed by the Arbitration Appellate Tribunal. In view of the decision reported in 38 DLR (AD) 172 Member Appellate Tribunal in deciding the appeal over the decision of the Arbitrator exercised a judicial function and as such he is a Court and for that matter his decision is amenable to the revisional jurisdiction.

Khaled Akbar vs Government of Bangladesh 42 DLR 66.

Sections 43 and 44

Exclusion of jurisdiction of a civil Court should not be readily inferred. If the order passed or action taken by any authority is malafide, such court shall have jurisdiction to entertain a suit to see whether the action is in conformity with the law in question.

Soleman Bibi and ors. vs ·Administrator, Farajikandi Complex and ors 45 DLR 727.

Section 44

It cannot be the intention of the legislature that when an award was made in the name of wrong person, through collusion or otherwise, the rightful owner of such property will have no remedy under the general law to establish his title to the compensation as awarded.

Animal Protection Society, Chittagong vs Laxman Chadra Das and ors 56 DLR 522.

Section 47

The provision give life to all proceedings and matters including all notices, notifications and orders relating to requisition and acquisition of any property under the (Emergency) Requisition of Property Act, 1948 "as if that Act had not ceased."

Abdul Bashar (Alhaj), being dead his legal heirs (a) Hosne Ara Begum & others vs Bangladesh and others 48 DLR 553.

Acquisition of Immovable Property Rules, 1952

Rule 4

Service of notice for acquisition of land-Petitioner annexing photo copy of notices while alleging their non-service. No such copy could be legally obtained. Had they obtained certified copies and annexed the same then it could be ascertained when they obtained the same. When photostat copies of the notices were produced it can be inferred that these were served in the manner prescribed by law.

Anwara Rashid vs Deputy Commissioner 45 DLR 207.

SPECIAL POWERS ACT, 1974

Citation: 43 DLR 372, 43 DLR 186, 42 DLR 164, 43 DLR 35, 42 DLR 189, 44 DLR 1, 40 DLR 364, 40 DLR 364, 40 DLR 364, 42 DLR 153, 41 DLR 450, 41 DLR 450, 44 DLR 312, 44 DLR 603, 40 DLR 193, 43 DLR 144, 43 DLR 372, 40 DLR 193, 45 DLR 242, 41 DLR 156, 40 DLR 193, 40 DL

Case Year: 1974

Subject: SPECIAL POWERS

Delivery Date: 2018-01-18

Special Powers Act, 1974
[XIV of 1974]

Section 2(1) and 3—
Section 3 if authorises detention for protective purpose. It confers on the Government the power to detain an individual for the purpose of preventing him from doing one or other or the 8 prejudicial acts mentioned in section 2(t) (i) to (viii) of the Act and for no Other purpose To keep a particular individual in detention for the purpose of protecting him front the onslaught of others is not contemplated within the four corners of the provision of law. The detenu might have a capability to create problem to public safety and public order, but that by itself cannot be the basis for passing an order of detention so long as he does not indulge himself in any prejudicial act and the members of the public, are not affected. (Per BB Roy Chowdhury J).
M Mahmood Vs. Bangladesh 43 DLR 372.

Section 2(f)(i)—
Detention order when void ab initio— Since the District Magistrate has no jurisdiction to pass an order of detention on the grounds enumerated in section 2(f)(i) the present Order of detention is void ab initio.
Moazzem Hossain Chowdhury Vs. Bangladesh 43 DLR 186.

Section 2(f) (i)—
A District Magistrate is not competent to make an order of preventive detention within the meaning of section 2(t) (1)—As it has been found that the initial order of detention passed by the District Magistrate On 31.:1 .89 and the detention of the detenu on the basis of it were illegal, the continuation of this illegal detention by the order of extension passed by the Government on 30.289 (sic) must also be deemed to be illegal. Initial order of detention was extended by a further order of detention with effect from an absurd date 30.2. 1989 whereas the month of February expired on 28.2.1989—Detention order being vague and indefinite is not lawful.
Khokan Kumar Saha Vs. Secretary, Ministry of Home Affairs 42 DLR 164.

Sections 2(1) & 16—
Where the subject matter of theft belongs to the citizen or any other organization or institution theft ipso facto of such property does not become prejudicial t6the economic and financial interest of the State. In the instant case as the motors in question belonged to the Project for irrigation of land of different individuals there is no scope to hold that the theft of the motors was prejudicial to the financial and economic interest of the State.
Anisuzzaman Vs. State 43 DLR 35.

Sections 2(1) and 3(2)—
Detention— Ground NO. 4 relates to a specific criminal case—All other grounds are vague, Indefinite and lack in material particulars—Detenu’s release ordered by Court.
AKM Azizul Haque Vs. Bangladesh 42 DLR 189.

Sections 2(1), 3 & 8—
Jurisdictlonal facts for detaining a person—Since the detaining authority is curtailing the liberty of a citizen by detaining him on preventive detention, it is exercising a quasi—judicial authority. To curtail fundamental rights of personal liberty enshrined in the Constitution it is essential that the detaining authority must have reports and materials, that is, jurisdictional facts for exercising power to detain the detenu under the special Powers Act.
Anisul Islam Mahmood Vs. Bangladesh 44 DLR 1.

Sections 2(f) (i), (ii) (viii) and 8—
Mandatory provision of section 8 of the Act has been violated by the Government by not serving the ground on the detenu that was mentioned in the detention order.
Rama Rani Bashak Vs. Bangladesh 40 DLR 364.

Section 2(f)(i), (iii), (v), (vii), (viii),—
Five different kinds of prejudicial acts were mentioned in the order without being sure as to which exact kind of prejudicial act the detenu was sought to be fastened with.
Rama Rani Bashak Vs. Bangladesh 40 DLR 364.

Sections 2(f) (iii) & 3(i)—
The Government which passed an independent detention order omitted all other grounds of prejudicial acts except the one defined in section 2(f)(iii) of the Act in the original detention order passed by the ADM—This shows non-application of mind.
Rama Rani Bashak Vs. Bangladesh 40 DLR 364.

Sections 2(f) and 3(1)(2)(3)(4)(5)—
Authority vested by Special Powers Act in the detaining authority—Detaining Authority’s power to detain a person for preventing him from doing prejudicial acts—Prompt must be taken to prevent the detenu from committing prejudicial acts any further—No explanation furnished by the detaining I authority as to the fact which prevents the detaining authority from taking prompt action.
Detention order served after a delay of more than 2 years and 6 months after the incidents of prejudicial activities—No rational nexus between the grounds and the passing of detention order.
Mahabuba Wahed Vs. Secretary, Ministry of Home Affairs 42 DLR 153.

Section 2(f)(viii)—
Prejudicial act—Mortgaged machineries attached to the bank— Accused appellant did not commit any act, prejudicial to the economic or financial interest of the Shilpa Bank which comes within the ambit of State by legal fictions as defined in Article 152 of the Constitution.
Anwar Ali Vs. State 41 DLR 450.

Sections 2(f) (VIII) and 16 read with Constitution of Bangladesh 1972 (as amended) Article 152(1) Bangladesh Shilpa Bank Order, 1972 (P0 No. 129 of 1972) Articles 33, 34 and 35—Interpretation of Statute—Bangladesh Shilpa Bank is a statutory public authority within the meaning of Article 152(1) of the Constitution—The liability of the loanee to repay the secured loan being civil in nature, he did not commit any prejudicial act and cannot be convicted under section 16 read with section 2(1) (viii) of Special Powers Act for default in payment of loan.—The Bank is a State by legal fiction. Appropriate remedy for the bank is for action under Articles 33—35 of ‘P0 No. 129 of 1972.
Anwar Ali Vs. State 41 DLR 450.

Section 2(g)—
Report or statement— Whether it is a prejudicial act—A report or a statement which is or likely to be an incitement to the commission of a prejudicial act is a prejudicial act. The legislature made a report or statement whether true or false made by the reporter or the speaker which had the effect or likely to be an incitement to the commission of a prejudicial act not by the maker of the speech, but by his audience being incited by that speech is itself a prejudicial act.
Mostafizur Rahman Vs. Bangladesh 44 DLR 312.

Section 3—
Detaining a person—Extent of satisfaction of the executive authority—The detaining authority is required to be very careful in examining the materials before passing the order of detention. Subjective satisfaction of the detaining authority can be looked into objectively by the High Court Division. The initial order of detention if found illegal the subsequent order of detention also suffers from infirmities.
Pearu Md. Ferdous Alam Khan for Serajul alam Khan Vs. State 44 DLR 603.

Section 3—
The detention order, Annexure ‘A’, did not mention anywhere that the detention of the detenu was considered necessary to prevent him from doing any prejudicial act. Thus on the face of the order itself it is without any legal authority in view of the provision of section 3of the Act.
Tahera Islam Vs. Secretary, Ministry of Home Affairs 40 DLR 193.

Section 3—
The purpose for, which the petitioner was taken into detention appears to be realisation of the bank loan. Such detention was not contemplated in the Act. If anything is payable to the bank as unpaid loan, there are other modes of recovery of the dues as—the loan was obtained under bilateral agreement creating a civil liability. For default in this regard provision of preventive detention under the Special Powers Act cannot be resorted to.
Mirza Ali Ashraf Vs. State 43 DLR 144.

Section 3—
Ground of detention— Capability to create problem cannot be, ground—A capability to create problems to public safety and public order by itself cannot be the basis for passing an order of detention so long as the detenu does not indulge himself in any prejudicial act endangering public safety and public order and the members of the public are not affected by his activities.
M Mahmood Vs. Bangladesh 43 DLR 372.

Section 3—
There is no nexus between the grounds mentioned in the order of detention and the grounds that were subsequently served on the detenu. For this reason also the detention order is liable to be held illegal.
Tahera Islam Vs. Secretary, Ministry of Home Affairs 40 DLR 193.

Sections 3 & 8—
Purpose of detention and grounds—Nexus—In the initial order of detention nothing has been stated about any act of the detenu to be prejudicial to the economic interest of the State which appears to be the ground No. I in the list of grounds supplied to him. There is therefore no nexus between the purpose of detention and the grounds thereof and as such the detention is unauthorised being based on no proper grounds.
Aminuzzaman Vs. Bangladesh 45 DLR 242.

Sections 3 and 8 read with Constitution of Bangladesh (as amended upto date) Article 33 (5)—
Grounds in the initial order of detention cannot be substituted for separate grounds to be communicated to the detenu.
Chunnu Chowdhury Vs. District Magistrate 41 DLR 156.

Section 3(1)—
When specific case has been stared in relation to the alleged activity of the detent,, the same activity could not in fairness be taken as a reasonable basis for making an order of detention.
Tahera Islam Vs. Secretary Ministry of Home Affairs 40 DLR 193.

Section 3(1)—
No order of detention from 23.8.87 to 26.8.87—illegal order of detention was sought to be legalized by an order of extension with retrospective effect which is not permiissible in law.
Tahera Islam Vs. Secretary Ministry of Home Affairs 40 DLR 193.

Section 3(1)—
Detention—detention to make one inactive to keep the even tempo of life—The Court in an examination of the ground upon which the detaining authority had acted would examine whether in a given case, in the light of the attending facts and circumstances, the authority could be satisfied that a person should be detained in order to make him inactive or rather neutralized so that greater public interest can be ensured. The criterion is the potentiality of his act, its impact on the members of the society.
Mostafizur Rahman Vs. Bangladesh 44 DLR 312.

Section 3(1)—
Detention—Detention with the apprehension that somebody else (students) may endanger public order due to some utterance of the detent, — There is no warrant for the view that for the action or programme of the students (that of proceeding towards the cantonment where the ousted President was then residing) should not be held responsible and that he had been detained not for doing any prejudicial act. A prejudicial act has been defined in section 2of the Special Powers Act to be “any act”. Here the law did not mention the act but made any act to be prejudicial which is intended by the doer of the act or likely to prejudice, which means the reasonable standard of likelihood or possibility to prejudice public order, etc.
Mostafizur Rahman Vs. Bangladesh 44 DLR 312.

Section 3(1) (a)—
Preventive detention— When it is colourable exercise of power—The detention has been based on self—same grounds as were communicated to the detenu on earlier Occasion and declared to be illegal. Repeated recourse to illegal grounds knowing them to be so speaks of a bad mind. In the facts of this case, the preventive 8ctibn of the respondent is nothing but a colourable exercise of power.
Fazana Huq Vs. Bangladesh 43 DLR 501.

Section 3(1) (a)—
There being no nexus between the initial order of detention and the, ground served, the order of detention is without lawful authority.
Mansur Moazzem Vs. Bangladesh 40 DLR 439.

Section 3(1) (a)—
Custody on the plea of conviction—where a prisoner is in custody on the basis of an order of conviction the onus of the respondent is discharged as soon as the return relating to the appellant’s custody ‘shows that there is an order of conviction justifying the custody. But the conviction is to N placed before the court for its satisfaction whether the irregularity in It can be overlooked. The warrant of commitment issued by one not authorized under the law can hardly prove the conviction.
Nasrin Kader Siddiqui Vs Bangladesh 44 DLR (AD) 16.

Section 3(1)(a)—
Detention—Simultaneous proceeding of criminal trial whether permissible—The jurisdiction under the detention law may be invoked when the available evidence does not come up to the standard of judicial proof but is otherwise cogent enough to give rise to a suspicion in the mind of the authority concerned. A preventive dent ion is to prevent a person on mere suspicion that some crime had been done and the same would be repeated and is not a question of proving an allegation by evidence which must be done when a proceeding is drawn under the Penal Code.
Where a criminal proceeding is essentially on the same subject matter and no other matter than the criminal proceeding, then the proceeding under the normal law of the land would b allowed to be continued and the specific case would negative the necessity of any detention order except it could be shown on evidence or from records that the proceeding would come to a fiasco because there s no possibility of evidence to be produced in court in spite Of attempts made by the prosecution for him tube punished eventually and there is a possibility of has Immediately repeating the same activity an similar manner A criminal proceeding thus would not bar a detention order but there are limitations.
Salim Hasan Vs Bangladesh 45 DLR 318

Section 3 (1) (a)—
Where allegations are of serious nature the detaining authority may consider them, and despite pendency of a criminal case, can make an order of detention if it is satisfied that the detenu is to be prevented from indulging in prejudicial activities.
Habiba Mahmud Vs. Bangtodesh 45 DLR (AD) 89.

Section 3(1) (a)—
Government’s passing of order of detention on 23.2.1987 after expiry of 30 days cannot be treated as extending the previous order of detention.
Khair Ahmed Vs. Ministry of Home Affairs 40 DLR 353.

Section 3(1) (a)—
The detenu is not released on receipt of the order of the Court and is continued in detention without any order whatsoever, then a fresh order of detention passed.
Held—by this order the Government merely continued an illegal detention and cannot be sustained.
Alam Ara Huq Vs. Government of Bangladesh 42 DLR 98.

Section 3(1) (a)—
The Government if satisfied with respect to any person that with a view to preventing him from doing any prejudicial act at is necessary to do so make an order directing that such person be detained This satisfaction is to precede the order of detention which means that all the materials are to be placed before the Government for forming an opinion that the detention is necessary.
Faisal Mahbub Vs Bangladesh 44 DLR 168.

Section 3(1) (a)—
Preventive detention— Nexus between the incident and the order of detention—The alleged offending acts of the detenu prior to his arrest in September 1987 formed the basis of the satisfaction of the detaining authority as to the necessity of the detention and those had a close link with the passing of the order of detention. The detenu has been in custody since 13.9.87 and there has been a long gap 2—1/2 years between the alleged prejudicial activities and the order of detention when there could legitimately be no material in possession of the detaining authority to show that there was any likelihood of the same being repeated. The detaining authority had, therefore, no material basis to form an opinion of satisfaction for passing the order of detention.
Farzana Huq Vs. Banladesh 43 DLR 501.

Section 3(1)(a)—
Detention order, nature and scope of—This provision requires that before the Government can pass an order of detention it must be satisfied with respect to the individual person that his activities are directed against the object mentioned in the section and that it is necessary to prevent him from acting against it. While empowering the Government to pass a preventive order the section appears to have expressly made it a part of its duty to satisfy itself about the existence of what the law makers regard as condition precedent to the exercise of that power. An order being indicative of the Stale of the mind of the authority making it, the concerned order of detention must expressly state that the Government is at it is necessary to make the Order to prevent the individual from doing any prejudicial act. If the order is silent in this respect the detention will be not in terms of the section.
M Mahmood Vs. Bangladesh 43 DLR 372.

Sections 3(1)(a) & 8—
Grounds—Wht, good grounds cannot be saved from impeachment When good grounds and bad grounds are mixed up and it cannot be ascertained which grounds actually led to satisfaction as to the necessity of the detention, good grounds cannot be saved from impeachment.
Hasina Karim Vs Bangladesh 44 DLR 366.

Sections 3(1)(a), 3(2)(3) and 3(3)—
The Government has two alternative powers, either to approve of the order passed by the DM or , the ADM under section 3(3); or to pass an independent order under section 3(1)(a) of the Act.
Khair Ahmed Vs. Ministry of Home I Affairs 40 DLR 353.

Sections 3(1) (a) .& 3(3)—
Government did not supply any fresh grounds of detention a required in every case of detention under the law.
Khair Ahmed Vs Ministry of Home Affairs 40 DLR 353.

Sections 3(I) (a), (2),(3), 8(2) and 10—
The order of detention must co—exist with the fact and materials of detention contained in the gro.ds’ of detention. There is no nexus between order of detention and the facts and reasons disclosed in the detention order.
Khair Ahmed Vs Ministry of Home Affairs 40 DLR 353.

sections 3(1)(a)(2)(3), 10, 11 & 12—
This decision deals with the implication of section 10, 11 and 12 of the Special Powers Act read with Article 3 3(4) of the Constitution regarding the placing of the case of the detenu within the statutory period of 120 days (as I section 10) before the Advisory Board, sending of the report of the Advisory Board containing Its opinion to the Government within 170 days as per section 11— and the legal necessity of the Government to confirm or revoke the order of detention (arid in case of confirmation pass further order for continuation of detention serving the same on the detenu) which in effect means that continuation of an order —of detention for indefinite period, even if initially otherwise va1id becomes illegal either on 120th day due to contravention of section 10, or on 170th day due to the contravention of the provisions of sections 11 and 12 of the Special Powers Act or on 180th day if the provision of section 12 of the said Act read with Art. 33(4) of the Constitution is not complied wish.
Md. Mansur Vs. Secretaiy, Ministry of Home Affairs 42 DLR 272.

Section (3)(1)(b)—
Preventive detention of a foreign citizen is uncalled for in the present case as the Government under section 3(l)(b) of the Act, may direct such person—to remove himself from this country.
In the case of a citizen of a foreign country in a case like the present one preventive detention is uncalled for as the legislature has provided in section 3(1) (b) of the Special Powers Act that the Govt. may direct him to remove himself from this country the manner specified in the order.
Dr. Md. Habibullah Vs. Secretary Ministry of Home Affairs 41 DLR 160.

Sections 3(2) and 8—
Detentio —Criminal case pending against the detenu The authority cannot take resort to the prov1sIos of the Special Powers Act on the self—same ground and fact for making an order Of detention.
Mrs. Nabila Chowdhury Vs. Government of Bangladesh 41 DLR 345.

Section 3(2)(3)—
Habeas Corpus— Extension of detention after expiry of initial period of detention—Order dated 2.5.1989 by the Ministry of Home Affairs was made after the expiry— of 30 days from the date of first order of detention by the Additional District Magistrate. The Government have not been authorised to— extend the period of detention with retrospective effect. The detenu is therefore detained under—an illegal order of detention and is directed to be released forthwith.
Momtaz Sultana Vs. Secretary, Ministry of Home Affairs 42 DLR 457.

Section 3 (2)(3)—
Detention order under section 3(2) remains in force for 30 days after the making thereof unless in the meantime it is approved by the Government. After the expiry of 30 days on 174 1987, the detention order is without any lawful authority as it was not extended within 30 days.
Saleha Chowdhury Vs. Government of Bangladesh 40 DLR 207.

Section 3 (2)(3)—
Computation of the time—limit of detention order—Whether the time of limitation of 30 days should be computed from the date of passing of the detention order or from the date of service of the order upon the detenu.
Saleha Chowdhury Vs. Government of Bangladesh 40 DLR 207.

Sections 3, 3(2) and 8(1)—
Detenu cannot be detained under section 3(2) of the Act on vague and indefinite ground served under section 8 of the Act as it does not enable him to make an effective presentation against his detention. [Relied on 31 DLR (AD) 1]
Pendency of a specific criminal case against detenu cannot be the ground for detaining him under section 3 of the Special Powers Act. 40 DLR 193 relied on.
Abdul Hakim Miah Vs. Secretary, Ministry of Home Affairs 42 DLR 219.

Section 3(3)—
Fourth and last order of detention was dated 8.7.89—This was passed in confirmation of order of detention dated 11.3.89 which was found to be illegal—Thus the order dated 8.7.89 which was in confirmation of an illegal order was also patently illegal.
The last order was passed under section 3 (3) of the Act. An order under this provision of the Act is passed by the Government in approval of an order passed by the District Magistrate/Additional District Magistrate. In the instant case no order of detention was passed by either District Magistrate—Additional District Magistrate detaining the detenu. It was an order where the detaining authority has not applied its, mind and has acted mindlessly, nervously and desperately.
Alam Ara Huq Vs. Government of Bangladesh 42 DLR 98.

Section 3(3)—
Non—application of mind in the matter of detention makes the order of detention illegal—Any order of detention not ‘a signed by a competent officer cannot be treated as a valid order of detention.
Abdul Hakim Miah Vs. Secretary, Ministry of Home Affairs 42 DLR 219.

Section 3(3)—
the period of limitation of 30 days occurring in sub-section (3) of Section 3 of the Act will begin to run from the date of making of the order.
Saleha Chowdhury Vs Government Bangladesh 40 DLR 207.

Section 3(3)—
Detention of the detenu after the expiry of 30 days (From 18.3.1987 to 17.4.1987) cannot be extended by an order— dated 5.10.1987 when the said detention was not legally in existence on and from 18.4.1987—Detention order Is illegal—Detenu is entitled to be released.
Saleha Chowdhury. Vs Government of Bangladesh 40 DLR 207.

Section 7(b)—
Direction upon absconding — person following order of his detention— Validity of such direction —When the order of detention is a nullity and — subsequent notification under section 7(b) ot the Special Powers Act also becomes a nullity and void ab initio and the consequential proceeding before the Special Tribunal under the said section 7(b) for non—compliance such null and void order becomes illegal and without lawful authority. In the instant case the order of detention is void ab initio because the detaining authority did not at all have before it “the junsdactional facts” to enable it to form its opinion that the person concerned should be detained for preventing him from acting in pre judicial manner and also because the involvement grounds given for preventive detention do not come within the meaning of the expression “prejudicial act” as define under section 2(f) of the Act.
Anisul Islam Mahmood Vs. Bangladesh 44 DLR 1.

Section 7(1)(b)—
Indictment proceeding against a detenu— question of its legality or otherwise at the time when It was initiated and at subsequent time—An order would be deemed to be a warrant of arrest from the Court of Magistrate; if the detenu would violate the warrant he would be a fugitive from justice. His failure to comply with direction to surrender would immediately attract the mischief of prosecution and consequent punishment. The offence would be complete on failure to surrender, subject however, to the defence of impossibility of performance which is a matter of fact to be decided on evidence. Section 7(l)(b) is a punitive provision to come into play immediately after the lapse of time, for surrender. The contention that the detentions order being illegal the detenu had not rightly surrendered has little substance. It is not the order of detention but it is the fact of detention itself that matters. At the time it was initiated the proceeding was not prohibited by any law nor was it taken in violation of any law. It need not therefore be quashed at the present stage.
Anwar Hossain Monju Vs. State 43 DLR 447.

Section 8—
Detention—It is now an established principle of law that the allegations out of which specific case is started are not proper grounds for preventive detention.
Aminuzzaman Vs. Bangladesh 45 DLR 242.

Section 8—
Grounds of detention—The detaining authority is under an obligation to furnish definite grounds as well as adequate particulars to the detenu so as to enable him to make a meaningful, representation against the detention. This obligation stems from the statutory right of the detenu embodying the constitutional mandate of Article 33 5). No detenu should suffer because of vagueness of grounds or of the fact that the evidence against him is not brought to his notice. The grounds in this case being extremely vague and indefinite the detenu was denied the opportunity to make an effective representation and consequently his detention has been rendered illegal.
Farzana Huq Vs. Bangladesh 43 DLR 501.

Section 8—
Communication of grounds— Its importance—When a ground is not specifically stated in the document communicated to the detenu under section 8 of the Special Powers Act the same cannot be used by the detaining authority to defend its preventive action as the detenu gets no opportunity to make any representation in respect thereof.
M Mahmood Vs. Bangladesh 43 DLR 372.

Section 8—
Grounds of detention— Whether the detention order would fall to the ground if the second ground of detention, out of two grounds, is found to be a malafide addition—The contention that the entire detention order would suffer from illegality as the second ground of detention could not be a pre—existing material at the time the impugned order was passed is of no substance because this ground was not before the detaining authority at the time the detention order was made and cannot thus be availed of by the detaining authority and the same must be left out of consideration. The first ground itself is a self—sufficient ground and good enough for the satisfaction of the detaining authority to pass the order of detention.
Mostafizur Rahman Vs. Bangladesh 44 DLR 312.

Section 8—
Every citizen has an inalienable right to be treated in accordance with law—Mere insertion of a section of some law In the order of detention is not enough. The provision of law must be strictly followed. Under Article 102(2) (b) of the Constitution the Court is to be satisfied that the detenu is not being held in custody without lawful authority—the Court is t see whether the grounds of detention supplied to the detenu are supported by materials.
Faisal Mahbub Vs. Bangladesh 44 DLR 168.

Section 8—
It is thus amply clear from the reasons stated in the order made under section 8 the Special Powers Act, 1974 containing the grounds of detention that no reasonable person could be satisfied about the necessity to detain the detenu.
Dr. Habibullah Vs. Secretary MO Home Affairs 41 DLR 160.

Section 8—Fresh grounds not having been served within 15 days on the detenu, the respondents had no legal capability of adding or substituting any more grounds—Detention of the detenu illegal.
Alam Ara Huq Vs. Government of Bangladesh 42 DLR 98.

Section 8—
‘Grounds’ must include facts as well. Grounds are not only necessary to enable the defence to make representation— they are the starting points both for Advisory Board and the High Court Division for discharging their obligations.
If the detenu asks for further particulars the Government may refuse to disclose a more facts on the ground of public interest. Section 8 of the Act requires that all grounds are to be given to the detenu and under the proviso to that section no ground can be withheld and only those fats may be disclosed whose disclosure is considered not to be against the public interest.
Habiba Mahmud Vs. Bangladesh 45 DLR (AD) 89.

Section 8(1)—
Ground Nos. 3, 4, 5 and7 being vague, indefinite and lacking In necessary particulars as to date, time and manner of detenu’s involvement in the activities, no effective representation could be made under section 8(1).
Khokan Kumar Saha Vs. Secretary, Ministry of Home Affairs 42 DLR 164

Section 8(2)—
Grounds of detention to be served within 15 days from the date of order of detention—Order of detention passed and. served on 24.1.87 and grounds of detention I served on 14.2.87 after 21 days from the date1 of detention—Order of detention suffers from legal infirmity.
Khair Ahmed Vs. Ministry of Home 40 DLR 353.

Section 8(2)—
Interpretation of Statute— Expression “not later than fifteen days from the date of detention”—Meaning of—Detenu’s valuable legal right to make representation or to move the Court at once involved.
The said extraordinary provision adding the expression “but not later than fifteen days from the date of detention” does not give a general licence to the Ministry of Home Affairs or to the District Magistrate, Additional District Magistrate to cause service of the order containing the grounds of detention in a. leisurely way within 15 days in every case deliberately to deprive the detenu of his. Valuable legal right to make effective representation at the earliest possible opportunity to the appropriate authority or to, move the Court at once.
Dr. Md. Habibullah Vs. Secretary, Ministry of Home Affairs 41 DLR 160.

Section 8(2)—
Preventive detention— Detaining authority must keep in view Article 33(5) of the Constitution—Grounds to be communicated at the earliest to the detenu regarding the order of detention.
The detaining authority must always keep in view Article 33(5) of the Constitution which provides that the authority making the order for preventive detention shall, as soon as may be, communicate to the detained person the grounds on which the order of detention has been made and the Legislature in section 8(2) of Special Powers Act has taken pains to specifically direct the detaining authority to cause service of the. order containing the detailed grounds of detention at the time of detention, that is, at the very moment he is detained under the order of preventive detention.
Dr. Md. Habibullah Vs. Secretary Ministry of Home Affairs 41 DLR 160.

Sections 9 and 10—
Grounds of detention have been not placed within 120 days before the Advisory Board from the date of order of detention, the mandatory provision of law has been violated.
Sirin Begum vs. District Magistrate 41 DLR 235.

Section 10—
Grounds of detention having been not placed before the Advisory Board within 120 days, the mandatory provision of law under section 10 of the Special Powers Act, 1974 was violated.
Iftekhar Ahmed Vs. Bangladesh 40 DLR 18.

Section 10—
Requirements provided for preventive detention to be strictly followed. Failure of the detaining authority to comply with the mandatory provision of law renders the detention illegal.
Iftekhar Ahmed Vs. Bangladesh 40 DLR 18.

Section 10—
Grounds of detention to be placed mandatorily before the Advisory Board within 120 days from the date of detention on failure of which the detention will be an illegal one after the expiry of 120 days from the date of detention. Detenu directed to be released.
Birendra Chandra Pal Vs. State 40 DLR 319.

Section 10—
The case of detenu having been not sent to the Advisory Board within 120 days from date of detention, his detention after 120 days is without lawful authority.
Khair Ahmed Vs. Ministry of Home 40 DLR 353.

Section 11(1)—
whether the High Court should pronounce its decision or has to wait till the Advisory Board reports its opinion to the Govt within the period provided in section 11(1).
In case of preventive detention where ordôr containing grounds of detention have been served on the detenu within the prescribed time, a question arises whether this Court should pronounce its decision or has to wait till the Advisory Board reports its opinion to the Govt. within the period provided in section 11(1) of the Special Powers Act.
Dr. Md. Habibullah Vs. Secretary Ministry of Home Affairs 41 DLR 160.

Section 16—
where the subject matter of theft belongs to the citizen or any other organisation or institution theft ipso facto of such property does not become prejudicial to the economic and financial interest of the State. In the instant case as the motors in question belonged to the Project for irrigation of land of different individuals there is no scope to hold that the theft of the motors was prejudicial to the financial and economic interest of the State.
Anisuzzaman Vs. State 43 DLR 35.

Section 25—
Whether the arrest of the detenu who occasionally visits Bangladesh has any rational nexus with the increase of prices of smuggled cigarettes or with the suspicion that he has a role in the smuggling of cigarettes.
Dr. Md. Habibullah Vs. Secretary Ministry of Home Affairs 41 DLR 160.

Section 25 and 25(b)—
Smuggling of rationed goods is an offence triable under section 25B of the Special Powers Act—Accusation under section 25 of the Act which does not relate to smuggling has prejudiced the defence—Conviction on this score is unsustainable.
Siddiqur Rahman Vs. State 41 DLR 173.

Section 258—
Smuggling—that the seized articles are contraband goods must be proved by. the prosecution—That the goods were of Indian origin have to be established for convicting the appellants—Individual liability of each of the appellants ought to have been considered—seized articles were donated to the Relief Fund without the Court’s permission, which prejudiced the prosecution case—the practice of disposal of the seized articles (alamats) pending trial of the case disapproved.
Rouf Mia Vs. State 40 DLR 348.

Section 25B—
since no offence was committed as found by the Special Tribunal in respect of the goods seized from the petitioner, the petitioner’s possession of the property must be deemed to be lawful. The Special Tribunal’s failure to make an order for return of the property has resulted in a miscarriage justice.
Sree Monoranjan Das Vs. State 40 DLR 485.

Section 25B & 27—
taking of cognizance of the case by the Special Tribunal on the basis of a prosecution report submitted by Inspection of Narcotics and Liquor under the Dangerous Drugs Act is bad in law. The Special Tribunal has no jurisdiction to take cognizance or t proceed with trial in such a position.
Shahidullah Vs. State 45 DLR 640.

Sections 258, 26 & 29—
Cognizance— Scheduled and non—scheduled offences— When the very taking of cognizance of an offence, the framing of accusation and the trial upon charges of both scheduled and non scheduled offences together suffered from complete lack of jurisdiction, this could not at all be considered to be a mere defect in the framing of charges which by aid of section 537 of the CrPC can be cured if prejudice is not caused to the accused. A mere defect in framing of charge by the Court having jurisdiction is one thing while framing of charge without having any jurisdiction is a completely different thing.
Mozammel (Md) Huq Vs. State 43 DLR 614.

Sections 26(2)—
The Sessions Judge had no jurisdiction to try the case under the provisions of Code of Criminal Procedure IV of 1898].
State Vs. Khalilur Rahman 41 DLR 1.

Sections 26 and 27—
Section 27 of the Special Powers Act is a departure from the provision of section 173 of the Code of Criminal Procedure. Special Tribunal alone is empowered to take cognizance of the offence on the report of a Police Officer of the rank of Sub—Inspector and hold trial on the same—Sections 26 and 27 of the Special Powers Act provide for special machinery for investigation and trial by Special Tribunal.
Taslima Begum Vs. State 42 DLR 136.

Section 26—
Plea of misjoinder of offences when not sustainable—Offences which are made punishable both under the general law and the special law exciusivery triable by the Special Tribunal cannot be said to be different offences or non—schedule offences as those offences have been made exclusively triable by the Special Tribunal. As such it cannot be said that the present trial is vitiated by misjoinder of charges and the Special Tribunal had no jurisdiction to make charges of schedule and non—schedule offences. Cases reported in 31, 33 & 35 DLR pages 174, 203, & 127 respectively held not applicable.
Abul Kashem Vs. State 43 DLR 420.

Section 27—
Bail—Inordinate delay in trial has been found to be a good ground for enlarging the accused on bail even in a case of murder and the same principle equally applies in a case under the Special Powers Act.
Dulal Mia Vs. State 44 DLR 209.

Sections 27 and 30—
The informant has no locus standi to file appeal before the Special Tribunal. Only the Government and the accused can do so against any order of conviction and sentence.
Firoza Begum Vs. Hormuz Ali 40 DLR 161.

Section 27(1)—
Quashing of proceeding under Special Powers Act—In matters of cognizance of offences triable exclusively by the Special Tribunal under the Special Powers Act initial cognizance of offence by a Magistrate in the manner provided in the Code of Criminal Procedure has no application.
In an application for quashment of proceeding on the ground of expiry of period of limitation for investigation, the provisions of section 167(5) of the Code applies only to cases in which the Magistrate can take initial cognizance and does not apply to cases exclusively triable by the Tribunal. On this ground the application for quashing is summarily rejected.
Mahbubur Rahman Vs. State 42 DLR 375.

Section 27(1)—
It has been asserted that the impugned order of the learned Upzila Magistrate is palpably illegal as he had no authority to take cognizance of the offence under the Special Powers Act and as such he was not competent to accept the final report submitted by the police and to discharge the accused opposite party and to direct return of the goods.
Held—As the Magistrate was not competent to take cognizance of the offence under section 27(1) of the Special Powers Act, the impugned order appears to have been passed by the learned Magistrate illegally and without lawful authority.
State Vs. Satya Narayi, Sarada 43 DLR 529.

Section 27(l) (4)—
Power conferred on Special Tribunal by section 27(1) to take cognizance of any case relating to the Act on police report and also under section 27(4) to direct the Police Officer to make further investigation cannot be exercised by the Session Judge in the revisional jurisdiction under sections 435 and 436 of the Code of Criminal Procedure.
Satya Ranjan Sarda Vs. State 42 DLR 142.

Section 27(6)—
Trial in absentia without proper notification—As the trial was held under provision of the Special Powers Act, the notification of the trial regarding abscondence of the accused persons should have been made by the Special Tribunal. The notification done by the Magistrate who had transferred the case before the Special Tribunal for trial suffers from gross irregularity, if not illegality as well, in the matter. In such circumstances the accused did not get the opportunity of cross—examining the witnesses. The case should therefore go on remand to the Special Tribunal for retrial, especially in view of the irregularity in the notification regarding abscondence of the accused. The impugned judgment and conviction is, therefore, set aside and the case is sent back on remand for retrial.
Khokan Vs. State 43 DLR 387.

Section 27(6)—
it was still obligatory to publish in official Gazette a direction on the accused to appear before the Court before taking up the trial if the accused was considered absconding because of their absence.
Md. Sabuj vs. State 40 DLR 150.

Section 27(6)—
Both the accuseds could not be regarded as having absconded as they were granted bail and summonses and warrants were directed to be issued.
Md. Sabuj Vs. State 40 DLR 150.

Section 27(6)—
The entire trial of the two accused persons held in their absence was illegal, in addition to the non—compliance of provision of section 27(6).
Md. Sauj Vs State 40 DLR 150.

Section 29—
Section 29 of the Special Powers Act makes the Code of Criminal Procedure applicable to the proceeding of the Special Tribunal—The time—limit imposed by section 339C CrPC will also apply to the proceedings of Special Tribunal.
Chand Miah Vs. State 42 DLR 97.

Section 29—
Applicability of the provisions of the Code of Criminal Procedure to the proceeding of the Special Tribunal does not empower the Special Tribunal to act as revisional court.
Satya Ranjan Sarda Vs. State 42 DLR 142.

Section 29—
Applicability of the Code to proceedings before Special Tribunals: The Act provides that the provisions of the Code shall apply to a case under the Act if they are not inconsistent with its own provisions. Section 339C of the Code being not inconsistent with any provisions of the Act shall apply to the proceedings before Special Tribunals constituted under the Act. Section 339C is intended for expeditious trial; the special statute is intended for “more speedy trial.” If the provision for speedy trial is not applied to trial under the Act, it will bring a situation not intended by the law—makers.
Kamruzzaman Vs. State 42 DLR (AD) 219.

Section 30—
Application for condonation of delay in filing an appeal under the Special Powers Act is not maintainable. And such an appeal when time—barred cannot be treated as a revisional application under CrPC.
Shamsul Haque Vs. State 43 DLR 247.

Section 30—
An appellant is not entitled to the benefit of section 5 of the Limitation Act when his appeal under section 30 of the Special Powers Act is barred by limitation.
Bashi Vs. State 43 DLR 209.

Section 30—
Appeal by informant against acquittal, competence of—The appellant is the father of the victim. He lodged the FIR and he is PW I in the case. He is an aggrieved person and competent to prefer the appeal against acquittal.
Monindra Kumar Malaker Vs. State 42 DLR 349.

Section 30—
Time to take appeal—Considering the express provision of law for filing appeal within 30 days from the date of judgment by the Special Tribunal, the prayer for registering the appeal for hearing on merits is rejected notwithstanding the fact that the accused had no opportunity to appear before the Tribunal and face trial.
Siddique Vs. State 45 DLR 214.

Section 32—
Bail—The bar of granting bail in Special Powers. Act case is not absolute. It depends on the facts and circumstances of each case.
Dulal Miah Vs. State 44 DLR 209.

Section 32—
The High Court Division summarily rejected the appellant’s prayer for bail on an erroneous view of section 32 of the Special Powers Act which does not provide for absolute bar on ball. Under section 32 even when the prosecution opposes the prayer for bail the court can release an accused on ball when it is satisfied that there are reaso4lalhie grounds for believing that the accused is not guilty of the offence alleged.
Madar Chandra Basu Vs. State 44 DLR (AD) 151.

Section 34—
The bar of proceeding in any Cowl as contemplated in this section does not include the Supreme Court exercising jurisdiction under Article 102 of the Constitution. The protection given in this section is only for anything done or intended to be done in good faith.
Mirza Ali Ashraf Vs. State 43 DLR 144.

Section 34—
Maintainability of writ petition challenging legality of the order of detention after release of the detenu—the petitioner being an aggrieved person along with others challenged the validity of the transaction made during his detention period touching the transfer of the mill of the Company of which he was the Managing Director. If the order of detention remained unchallenged it may be used against him which may create obstacle in the way of his getting proper remedy. No other Court other than this Court under Article 102 of the Constitution has jurisdiction in the matter. And suit or other proceeding may be taken in any appropriate Court for anything done not in good faith. The impugned order has net therefore become infructuous and the relief prayed for is not for academic purpose; in t view the writ petition is quite maintainable and the petitioner is entitled to the declaration prayed for.
Mirza Ali Ashraf Vs. State 43 DLR 144.

Non–Cadre Class I and II Gazetted Officers (Customs, Excise and VAT) Appointment and Service Terms and Conditions Act [XX of 2000]

Non–CadreClass I and II Gazetted Officers (Customs, Excise and VAT) Appointment andService Terms and Conditions Act [XX of 2000]

Section 8–

If theGovernment wants to make the services under reference at par, the Government isto amalgamate their services and to frame rules accordingly. Withoutamalgamating their services they cannot be treated equal and their servicesinter–transferable. Accordingly, section 8 of the impugned Act XX of 2000 isfound to be violative of Articles 133 and 136 of the Constitution.

SalahuddinTalukder (Md) vs Government of the People's Republic of Bangladesh 56 DLR 161.

Rangamati Hill Tract District Local Government Council (Amendment) Act, 1997

RangamatiHill Tract District Local Government Council (Amendment) Act [II of 1997]

Section 16Ka—

Section 16Kahas been added in order to meet a situation if for the reasons andcircumstances beyond control the election of the councils cannot be held withinthe stipulated time.

Ziaur RahmanKhan MP and others vs Bangladesh and others 49 DLR 491.

Section 16Ka—

InterimCouncil will be created only to meet an unforeseen situation and such a councilwill in fact come in aid of and to facilitate the implementation of theprovisions of Articles 59 and 60 of the Constitution.

Ziaur RahmanKhan MP and others vs Bangladesh and others 49 DLR 491.

Abandoned Buildings (Supplementary Provisions) Ordinance, 1985

Citation: 50 DLR (AD) 93, 49 DLR 557, 46 DLR 601, 42 DLR 430, 47 DLR (AD) 71, 45 DLR 416, 46 DLR 130, 51 DLR (AD) 42, 53 DLR 94, 53 DLR 426, 54 DLR 165, 49 DLR (AD) 161, 42 DLR 430, 51 DLR (AD) 24, 42 DLR (AD) 86, 48 DLR 547, 53 DLR (AD) 55, 54 DLR (AD) 100 , 4

Subject: Abandoned Buildings (Supplementary Provisions)

Delivery Date: 1970-01-01

Section 2(b)

The Court of Settlement was not a Court for determining the title of the rival claimants. It is a court only for determination as to whether the case property is an abandoned property or not.

Government of the People's Republic of Bangladesh, represented by the Secretary, Ministry of Public Works vs Chairman, Court of Settlement and others 50 DLR (AD) 93.

Section 4

The case property having been included in 'Kha' list on 25-12-1988 for the first time it cannot be included in the list of abandoned property.

Nasir Hossain (Md) vs Bangladesh and others 49 DLR 557.

Section 4

Since no notice for surrendering possession of the property was issued, it can hardly be said that the property has been lawfully included in the list of abandoned buildings.

Nurul Hoque vs Bangladesh 46 DLR 601.

Section 5

Maintainability of suit in Civil Court-The suit building was included in the list published in the official Gazette in contravention of section 5(!)(a)(b) of the Ordinance and as such the Civil Court had jurisdiction to try the suit. The Court clearly fell into error in holding that because of inclusion of the building in the official Gazette the suit was not maintainable.

Md. Zaher vs Bangladesh 42 DLR 430.

Section 5

Decree in a suit for Specific Performance of Contract-whether such a decree can be pleaded as a bar for inclusion of a building in the list of abandoned property.

The decree in the suit for specific performance of contract will show that it has only decided the controversy between the vendor and the vendee and directed the vendor to execute the necessary document in favour of the vendee. Such a decree is not the one which is mentioned in Proviso (a) and, as such, the existence of such a decree cannot be pleaded as a bar for inclusion of the building in the list.

CQMH Md Ayub Ali vs Bangladesh and others 47 DLR (AD) 71.

Section 5-

It is a. condition precedent that the physical possession of a building must have been taken over by the Government before it could be listed as an abandoned property.

Iqbal Ahmed Quraishi vs Bangladesh 45 DLR 416.

Section 5

When the petitioner as well as his vendor are citizens of Bangladesh and the disputed property had been in their possession successively without a notice under President's Order 16 of I 972 and the Rules thereunder the property cannot be treated as abandoned property.

Petitioner's assertion that no notice was served at any time to treat the disputed property as an abandoned property having not · been controverted we have no option but to hold that inclusion of the disputed property in the list of the abandoned properties published on 23.9.86 in pursuance of section 5 ofthe aforesaid Ordinance is without jurisdiction.

Alhaj Mohammad Rahim uddin Bharsha vs Bangladesh 46 DLR 130.

Section 5

Proviso (a) The ex parte decree obtained by the writ petitioner is a declaratory decree simpliciter without any prayer for recovery of possession, when, admittedly, the writ petitioenr was not in possession thereof. Such a decree is not within the contemplation of proviso (a) to Section 5.

Bangladesh vs Anwar Ahmed and others 51 DLR (AD) 42.

Section 5

The mere fact that the petitioner was not found by the survey team in the building in question cannot be the basis for holding the petitioner as an imposter of the original lessee.

Abul Hossain and others vs Bangladesh and others 53 DLR 94.

Section 5

The next contention as to obtaining a decree for specific performance of contract is of no avail as the Government is not bound by such a decree.

Hamayet Uddin Ahmed vs 1st Court of Settlement, Bangladesh Abandoned Building & ors 53 DLR 426.

Section 5

The decision of the court declaring the property as not being abandoned property and excluding the property from the list of abandoned property was sufficient relief and from the date of such judgment the property stood excluded from the list of abandoned properties (Vide 48 DLR 291).

Wahidul Haque vs Bangladesh and others 54 DLR 165.

Section 5

After the decision of the courts of law declaring any property as not being abandoned property a further release order of the same property by the government is not necessary. From the date of such judgment the property stands excluded from the list of abandoned properties.

Wahidul Haque vs Bangladesh and others 54 DLR 165.

Section 5

No rebuttable evidence could be adduced to show that original owner Yahiya was present in Bangladesh and he occupied, managed or supervised the disputed building when President's Order 16 of 1972 came into operation. Hence, the listing of the property as an abandoned property in the Supplementary Provisions Ordinance, 1985 was lawful as it was an abandoned property by operation of law.

Government of Bangladesh vs Ashraf Ali @ Ashraf Ali and another 49 DLR (AD) 161.

Sections 5 and 6

List of abandoned property-In the instant case the suit building was requisitioned before President's Order 16 of 1972 came into force on 10-3-1972. The list of buildings for publication in the official Gazette refers to buildings the possession of which has been taken over as abandoned property or the building in respect of which notice for surrendering or taking possession under PO 16 of 1972 has been issued. The requisition of the property and complete possession thereof having been final on 16-2-1972 and the same having never been' taken over as abandoned property, sections 5 & 6 of the Ordinance have no application with regard to the suit building.

Md Zaher vs Bangladesh 42 DLR 430.

Sections 5 and 7

The writ petitioners can come directly to the High Court Division for protection of their fundamental right even though an alternative remedy is available.

Government of Bangladesh, represented by Ministry of Works anti another vs Syed Chand Sultana and others 51 DLR (AD) 24.

Sections 5 and 7

The onus is on the claimant of the building to prove that the building is not an abandoned property. The Government has no obligation either to deny the facts alleged by the claimant or to disclose the basis of treating the property as abandoned property merely because the same is disputed by the claimant.

Government of Bangladesh vs Md Jalil and others … DLR (AD) 10.

Section 5(1)(a)

The High Court Division, in our opinion, could itself interfere, notwithstanding correctly observing that there was an alternative remedy under section 7 of the Ordinance, in view of the particular facts of the case. The Ordinance was promulgated on 28 November 1985 and the list under section 5(l)(a) thereof was published in the gazette on 28-4- 1986. Section 7 provides that any person claiming any right or interest in any building which is included in the list may within a period of 108 (perhaps 190) days from the date of the publication of the list in the official gazette make an application to the court of settlement for exclusion of the building from such list, etc. It is not disputed that although the notification was published on 28-4-1986 the court of settlement was constituted on 21-10-1986. The appellant filed the writ petition on 19-8-1986, apparently at a time when the court of settlement was yet to be constituted. The High Court Division may not have admitted the petition at all because of the aforesaid provision but having admitted the same, apparently being aware that the court · of settlement was not constituted then, it was not quite proper to decline interference after three yars on the ground of alternative remedy, more so. having itself noticed that the Ministry of Home Affairs did not even come up with an affidavit to asert the presence of a Police Box as stated by the contesting respondents in their affidavit-inopposition in spite of a specific direction in that behalf.

Held: In the result, the appeal is allowed declaring the impugned notification has been made without lawful authority and is of no legal effect.

Begum Lutfunnessa vs Bangladesh 42 DLR (AD) 86.

Section 5(1)(b)

Serving notice to a wrong address making no attempt to take possession or to ascertain the status of the property casts doubt as to the bonafide of the respondents' intention to serve a proper and effective notice to surrender the possession of the property included in the 'Kha' list. Such a notice· cannot be considered a notice in the eye of law.

Syeda Chand Sultana and others vs Government of Bangladesh, represented by the Ministry of Works, and others 48 DLR 547.

Section 5(1)(b)

Since no notice as contemplated under section 5(1)(b) of the Ordinance was issued to the respondent or any other person inclusion of the disputed property in the "Kha" list of the abandoned buildings is without lawful authority.

Bangladesh vs Amela Khatoon and ors 53 DLR (AD) 55.

Section 5(1)(b)

Notice as contemplated under section 5(1)(b) of the Ordinance having not been issued to the respondent inclusion of the disputed property in the 'Kha' list of the abandoned buildings is without lawful authority.

Government of Bangladesh and others vs Bibi Marium and others 54 DLR (AD) 100

Section 5(l)(a)(b) & (2)

Ex parte decree for specific performance of contract against the seller whose whereabouts were not known and the transfer on the basis thereof are in contravention of sections 6 and 14 of President's Order 16 of 1972 read with section 5 of Ordinance 54of1985 and the same are void and inoperative and need not be avoided. The inclusion of the property in question in the official Gazette as an abandoned property is not hit by the provisos (a) and (b) of section 5(1) of the Ordinance.

CQM Md Ayub Ali vs Bangladesh 45 DLR 746.

Section 5(2)

It must be presumed that the law as made is consistent and valid unless the presumption is rebutted.

Karamat Ali and others vs Government of the People's Republic of Bangladesh & others 50 DLR 372.

Section 5(2)

Presumption of conclusiveness of evidence flowing from publication of the disputed house in 'Ka' list of abandoned property when remained unrebutted, the Court of Settlement was justified in holding that the property was rightly enlisted as such.

Shamima Khatoon vs Bangladesh 46 DLR 511.

Section 5(2)

Property listed as abandoned property-The burden is on the claimant to prove that it is not an abandoned property. Presumption of correctness of the entries in the Gazette Notification does not absolve the government of disclosing the basis for treating the property as abandoned property when it is disputed.

Jalil vs Chairman, Court of Settlement 44 DLR 288.

Section 5(2)

Enlistment as abandoned property-If the criteria set forth in section 5. are not fulfilled · in regard to any property, that property cannot be enlisted as abandoned property. The moment it is found that the property is not qualified to be enlisted as abandoned property, the jurisdiction of the Court of Settlement ceases to operate.

Abdul Khaleque vs The Court of Settlement 44 DLR 273.

Section 5(2)

The Ordinance has created a special forum to deal with a property enlisted as abandoned property. A special procedure has also been made therein to decide those cases. A legal presumption has also been attached under section 5(2) of the Ordinance to the list published under sub-section (1) as a conclusive evidence that the enlisted property is an abandoned property.

Bangladesh vs Anwar Ahmed and others 51 DLR (AD) 42.

Section 5(2)

The Government has no obligation either to deny the facts alleged by the claimant or to disclose the basis of treating the property as abandoned property merely because the same is disputed.

Hamayet Uddin Ahmed vs 1st Court of Settlement, Bangladesh Abandoned Building & ors 53 DLR 426.

Sections 5(2) & 7

The Government has no obligation either to deny the facts alleged by the claimant or to disclose the basis of treating the property as abandoned property merely because the same is disputed by the claimant.

Government of Bangladesh, represented by the Secretary, Ministry of Works vs Md Jalil & others 49 DLR (AD) 26.

Section 7

The petitioner cannot invoke the writ jurisdiction at the first stage without exhausting the other remedy provided for in the Ordinance (LIV of 1985).

The Court of Settlement has been given the specific power to exclude the disputed property from the list (a). The petitioner has been given a specific right to argue before the Court of Settlement that the building is not an abandoned property, that it was not vested in the Government or that right or interest in the building has not been affected by the provisions of President's Order No. 16 of 1972. When the statute has devised an alternative forum for giving complete relief to the petitioner, it is not understood how the petitioner can invoke this jurisdiction at the first stage without exhausting the remedy provided for in the Ordinance.

Begum Lutfunnessa vs Secretary, Ministry of Home & others 41 DLR 193.

Section 7

0ne need not seek remedy before the Court of Settlement once his right and status in respect of a disputed house was decided by a legally constituted forum.

Sarwari Begum vs Bangladesh 45 DLR 571.

Section 7

lf the Court of Settlement was not properly constituted as alleged by the petitioners and accepted by the High Court Division then the only conclusion should have been that the matter was not legally disposed of by that Court and should be taken to be pending.

Hasina Khatoon and others vs Bangladesh and others 48 DLR (AD) 13.

Section 7

The minimum the government must show in a proceeding where publication of the list of property taken over as abandoned property is challenged by its owner is that the possession of the property has at some point of time been taken over as abandoned property.

Karamat Ali and others vs Government of the People's Republic of Bangladesh & others 50 DLR 372.

Section 7

Decision of the civil Court with regard to the nature of the property and also the plaintiff's claim thereto is not only binding upon the present petitioner but also upon the Court of Settlement.

Moinuddin (Md) vs The People's Republic of Bangladesh, represented by the Secretary Ministry of Works and another 48 DLR (AD) 56.

Section 7

Since the property in question never vested in the Government as abandoned property the question of limitation in filing of the case does not arise.

People's Republic of Bangladesh, represented by the Secretary, Ministry of Public Works, Secretariat Building vs Chairman Court of Settlement and others 49 DLR 560.

Section 7

The lease deed together with other documents showing the continuity of petitioner's possession and the failure of the government to show any basis of the owner of the property in dispute leaving the country and acquiring citizenship of other country go to show the title of the petitioner in the property and renders its enlistment in the "Ka" list denude of any legal authority.

Shamsul Haque vs. Court of Settlement and others 49 DLR 469.

Section 7

The High Court Division appears to have misconstrued and misconceived their jurisdiction under Article 102 in holding that the writ petition is maintainable, where the writ petitioner had already availed of the special remedy provided under section 7 of the Ordinance.

Bangladesh vs Anwar Ahmed and others 51 DLR (AD) 42.

Section 7

The plea taken by the respondent depending on the decisions in 42 DLR (AD) 86 and 51 DLR (AD) 25 that the writ petitioner could invoke the writ jurisdiction without having recourse to the Court of Settlement does not seem tenable because the jurisdiction of the Court of Settlement in this particular case in including the property in the list of abandoned properties cannot be said to be ex facie void.

Bangladesh and another vs Habib Zamil 52 DLR (AD) 174.

Section 7

Since the Court of Settlement has already directed for exclusion of the property from the list of abandoned property no further direction by the High Court Division is necessary to the same effect. The respondents are directed to restore possession of the property to the petitioner evicting the occupier respondent.

Akhtar Hossain vs Bangladesh, and others 52 DLR 148.

Sections 7 and 9

Court of Settlement - Validity of its orders-In view of the provision for constitution of the Court of Settlement order passed by the court in the absence of one member is not lawful. No provision has been made in the Ordinance that the order passed in the absence of one member shall not be invalid. It is clear that it was the intention of the Legislature that the Court of Settlement must be constituted to hear and dispose of matters with 3 members including the Chairman. Unless an order is passed by a properly constituted court it has no effect and it is no order in the eye of law even if it is otherwise proper.

Mst Fatima Begum vs Bangladesh 42 DLR 342.

Sections 7 and 10(5)

There being no scope for dismissal of the case for default, the Court of Settlement acted without jurisdiction in dismissing the case for default. The case is sent back on remand for disposal in accordance with law.

Shamim Begum vs Chairman, Court of Settlement and others 52 DLR 456.

Section 7(1)

We failed to understand under what reason the period of limitation has been fixed at l 08 days, Either it would be one month, three months or six months but section 7(1) has provided the limitation of 108 days which means 3 months 18 days and such period of limitation could nowhere be found in the Limitation Act or in any other special Act providing limitation, this may be through inadvertence or mistake that 180 days has been printed as 108 days.

Jamal Hossain (Md) and others vs Chairman, 2nd Court of Settlement, Abandoned Buildings, Dhaka and others 52 DLR 67.

Section 7(3)

There is nothing on record to show that the petitioner was ever asked to show cause about inclusion of the property or to surrender the same which has definitely denied the right of natural justice to the petitioner.

Nasir Hossain (Md) vs Bangladesh and others 49 DLR 557.

Section 7(3)

An abandoned property in possession of any person can only be included in the list of "Abandoned properties", called "Kha" list, in respect of which notices for surrender have been issued and possession taken over as "Abandoned Property".

Lalima Begum and another vs. Chairman, Court of Settlement, 1st Court Dhaka and another 49 DLR 325.

Section 9(2)

Court of Settlement shall consist of a Chairman and two other members who shall be appointed by the Government.

Secretary, Ministry of Public Works vs Court of Settlement (I st Court) Bangladesh Abandoned Building 51 DLR 396.

Section 10

High Court Division in exercise of its writ jurisdiction cannot sit as a Court of Appeal over the judgment of the Court of Settlement for resettling questions of fact.

Mostafa Kamal (Md) vs First Court of Settlement and others 48 DLR (AD) 61.

Section 10

Decree by Civil Court-Whether Court of Settlement is competent to disturb it-The decree is binding on the Government until it is set aside by a court of competent jurisdiction. A party to the suit cannot say that an agreement, which was the basis of the suit, was forged. The Court of Settlement has no power to set aside a decree of the civil Court but it has the jurisdiction only to decide the matter on the basis of papers produced and so the decree stands against the Government.

Rahela Khatun vs Court of Settlement 45 DLR 5.

Section 10

By not deciding the case on merit the Court of Settlement acted illegally and without lawful authority.

Government of Bangladesh and others vs Md Hafizur Rahman and another 53 DLR (AD) 99.

Section 10(2)

Court of Settlement-Jurisdiction-The Court of Settlement is competent and within its jurisdiction to allow the prayer of any petitioner to exclude a building from the list of abandoned buildings and order the building to be restored to him.

Abdul Quddus vs Bangladesh 44 DLR 484.

Section 10(5)

Dismissal of case for default whether permissible-The Court of Settlement is not empowered to dismiss the case pending before it for default simpliciter. The law requires a decision on the issue raised-the same having not been given, the case must be sent back for trial.

Chand Miah Talukder vs Chairman, Court of Settlement and others 45 DLR 304.

Section 10(5)

The presumption of correctness of the entries in the Gazette Notification does not absolve the Government from disclosing the basis of treating the property as abandoned when it is disputed.

Nurul Hoque vs Bangladesh 46 DLR 601.

Section 10(5)

The denial of a fair trial will only arise if a proper opportunity is not afforded to the person for producing his evidence or any evidence sought to be adduced by him is unreasonably shut out or he is not given a reasonable opportunity of being heard. A Court of Settlement under section 10(5) is obliged to make such enquiry as it may deem necessary and give reasonable opportunity to the parties concerned of being heard and to produce evidence, both oral and documentary, if any.

CQMH Md Ayub Ali vs Bangladesh and others 47 DLR (AD) 71.

Section 10(5)

There is no scope for the Court of Settlement to pass an ex parte order of dismissal for default as the Court of Settlement is required to give a decision on the issues raised by the parties.

Sukurjan Bibi vs Chairman, Court of Settlement, Dhaka 54 DLR 215.=

Section 10(5)

The petitioner ought to have been given chance to adduce evidence to prove the deed of sale in his name-His prayer should not be thrown away on the plea that his Advocate previously expressed intention not to examine any further witness.

Abdur Rahman vs Government of Bangladesh and another 55 DLR 196.

Sections 10(5) and (6)

The decision of the Court of Settlement declaring the disputed house as not being abandoned property and excluding the house from the 'Ka' list of abandoned property is sufficient relief and from the date of judgment the property is not an abandoned property and it stands excluded from the list of abandoned buildings, whether the Government by a further notification excludes it from the list of abandoned buildings or not.

Akbar Hossain (Md) vs Bangladesh and others 48 DLR 291.

Section 10(6)

There is no provision in this Ordinance that after the decision of the Court of Settlement the Government is required to make a further notification in the official Gazette notifying that the property has been excluded from the list of abandoned buildings.

Akbar Hossain (Md) vs Bangladesh and othes 48 DLR 291.

Acquisition and Requisition of Immovable Property Ordinance, 1982

Acquisition and Requisition of Immovable Property Ordinance, 1982

Section 2(b)

"Deputy Commissioner" includes an Additional Deputy Commissioner and any other officer authorised by him.

Sankar Gopal Chatterjee vs Addi Commissioner, Dhaka Division 41 DLR 326.

Section 3

The law of acquisition gives the Deputy Commissioner power to acquire property in two likely situations; if the property is needed or if the property is likely to be needed.

The use of two alternative expressions in the notice under section 3 is indicative of a lack of application of mind and the notice under section 3 is liable to be struck down on this ground.

Sankar Gopal Chatterjee vs Addi Commissioner Dhaka Division 41DLR326.

Section 3

Hence on the ground of lack of public purpose the acquisition proceedings fail.

Sankar Gopal Chatterjee vs Additional Commissioner, Dhaka Division 41 DLR 326

Sections 3 and 4

Zahed Hossain Mia vs Deputy Commissioner 50 DLR (AD) 15.

Sections 3 and 4(3)(b )

The notice under section 3 suffers from a total lack of jurisdiction.

Sankar Gopal Chatterjee vs Additional Commissioner, Dhaka Division 41DLR326,

Sections 3 and 6

Haji Abdur Rahim vs Secretary, Ministry of Land Administration and Land Reforms 46 DLR 378.

Sections 3 and 15

Sankar Gopal Chatterjee vs Additional Commissioner Dhaka Division 41DLR326.

Sections 3 and 1

Sankar Gopal Chatterjee vs Addi Commissioner Dhaka 41DLR326.

Sections 7 and 8

Khaled Akbar vs Govt of Bangladesh 42 DLR 66.

Sections 8, 12(1) and 28

Khaled Akbar vs Govt of Bangladesh 42 DLR 66.

Sections 10 and 12

Bangladesh vs Subash Chandra Das 46 DLR (AD) 63.

Sections 10(2) and 30

The Arbitrator does not exercise a judicial function in course of inquiry or investigation into the amount of compensation although he is expected to act within judicial norms.

Begum Lutfunnessa vs N Ahmed 40 DLR 232.

Section 12

Subash Chandra Das & ors. vs Bangladesh, represented by the Secretary, Ministry of Land Administration and Land Reforms, Government of the People's Republic of Bangladesh and others 50 DLR (AD) 106.

Section 12

Jamir Ali (Md) and others vs Secretary, Ministry of Land & others 52 DLR (AD) 176.

Article 12

Jamir Ali (Md) and others vs Secretary, Ministry of Land and others (Spl. Orginal) 52 DLR 125.

Sections 27 & 28

Thomarshu alias Majhi vs Bangladesh 52 DLR 516.

Sections 27 and 34(2)

Khaled Akbar vs Govertment of Bangladesh 42 DLR66.

Section 28

Thomarshu alias Bangladesh 52 DLR 516.

Section 31

It is an universal law that a restrospective operation is not to be given to a statute so as to impair an existing right.

Former Modern Shishu Hospital, presently Institute of Child Mother Health vs Abdus Salam, son of Late Yusub Molla and another & 5 others 49 DLR 160.

Sections 31 and 32(3)

Begum Lutfunnessa vs N Ahmed 40 DLR 232.

Sections 31 and 34

Shahjahan Ali Khan (Md) and others vs Government of Bangladesh and others 52 DLR 99.

Sections 32(3) and 36

Begum Lutfunnessa vs N Ahmed 40 DLR 232.

Section 34(1)

As appeal from the order making award by the Arbitrator lies to the Arbitration Appellate Tribunal; the present appeal before the High Court Division is incompetent.

Bangladesh vs Md Mazibur Rahman 47 DLR 559.

Section 34(3)

Khaled Akbar vs Government of Bangladesh 42 DLR 66.

Sections 43 and 44

Soleman Bibi and ors. vs ·Administrator, Farajikandi Complex and ors 45 DLR 727.

Section 44

Animal Protection Society, Chittagong vs Laxman Chadra Das and ors 56 DLR 522.

Section 47

Abdul Bashar (Alhaj), being dead his legal heirs (a) Hosne Ara Begum & others vs Bangladesh and others 48 DLR 553.

Acquisition of Immovable Property Rules, 1952

Rule 4

Anwara Rashid vs Deputy Commissioner 45 DLR 207.

Administration of Justice Act, 1956

Citation: 38 DLR 30

Subject: Administration of Justice

Delivery Date: 1970-01-01

Administration of Justice Act, 1956

Section 3(4)

Kings Shipping Trading Co vs Messrs LS Line & Ors 38 DLR 30.

Kings Shipping Trading Co vs LS Line & Ors 38 DLR 30.

Kings Shipping Trading Co vs Messrs LS Line & Ors 38 DLR 30.

Administrative Tribunal Act, 1981 & Administrative Tribunals Rules, 1952

Administrative Tribunal Act, 1981

—In disposing of the small question of application of the Master & Servant Rule in the two cases it may be noted that it is now well settled that the employees of the statutory corporations like the Janata Bank cannot be placed in the category of relationship subsisting between master and servant and that the normal forum for redress of their grievances is the Civil Court Vide 29 DLR (SC) 39.

Md Shahabuddin vs Janata Bank 41 DLR 94.

—Administrative Tribunal Act, 1981 which is a self-contained composite legislation does not need the additional umbrella of writ jurisdiction under Article 102 of the Constitution for . the implementation of its decisions and orders.

Saifur Rahman vs Secretary, Ministry of Agriculture 41 DLR 538.

Section 2, clause (b )

The decision of the Appellate Tribunal like that of the Tribunal is immune from any review under Article 102 because Article 117 also applies to the Appellate Tribunal.

Mujibur Rahman vs Bangladesh 44 DLR (AD) Ill.

Sections 2 and 4

The Administrative Tribunal Act 1980 being a subsequent Act to the Industrial Relations Ordinance, 1969 and Government Servants' (Discipline and Appeal) Rules, 1985 the provisions of Administrative Tribunal Act shall have exclusive jurisdiction to determine the petitioner's application in respect of terms and conditions of his service.

Mozibul Huq vs Chairman, 1st Labour Court and others 55 DLR (AD) 911 .

Sections 2(aa) and 4

The transferability or non-transferability of the appellant's service is a condition of his employment and the matter clearly comes within the purview of section 4 of the Administrative Tribunal Act, 1981. The Administrative Tribunal has the full power to give complete relief to an applicant including drawing up of contempt proceeding against an employer refusing to comply with its order.

Abdul Mannan Talukder vs Bangladesh House Building Finance Corporation 42 DLR (AD) 104.

Sections 3 and 5

There is no command in the Constitution that the Tribunal or the Appellate Tribunal is substitute or co-equal to the High Court Division. It is left to the legislature, after establishing the Tribunals, to make necessary provisions in this regard for the carrying out of the functions of the tribunals.

Mujibur Rahman vs Bangladesh 44 DLR (AD) 111.

Section 4

The transfer of respondent No. 2 being a matter relating to the terms and conditions of service, the legality or otherwise of the order of transfer of the respondent No. 2 is exclusively triable by the Administrative Tribunal.

Bangladesh House Building Finance Corporation vs Chairman, Labour Court 41 DLR 341.

Section 4

Jmpugned order of transfer relating to the appellant's service can only be agitated before the Administrative Tribunal.

Abdul Mannan Talukder vs Bangladesh House Building Finance Corporation 42 DLR (AD) 104.

Section 4

Promotion being part of the terms and conditions of the service a grievance in respect of the same undoubtedly falls within the exclusive jurisdiction of the Administrative Tribunal.

Junnur Rahman vs Bangladesh Shilpa Rin Sangstha (BSRS) and others 50 DLR 39.

Section 4

If one Branch of the Department of the Government is not following the lawful order of the hierarchy of the Governmental authority, definitely the person who is aggrieved can come before this Court and pray for direction or declaration to implement, fulfil or obey the lawful order of the Government which the Administrative Tribunal is not competent to do.

Matiur Rahman (Md) vs Bangladesh, through the Secretary, Ministry of Establishment of the Government of the People's Republic of Bangladesh & ors. 50 DLR 357.

Section 4

Petitioners have not been given· any right· under the Act to move the Tribunal to implement the judgment of the Appellate Division and the Administrative Appellate Tribunal given in respect of a different person who filed cases not in a representative capacity or in the nature of a group or class action but as an individual applicant.

Hajizuddin (Md) and three others vs Bangladesh Bank, represented by Governor and others 49 DLR (AD) 147.

Section 4

Return of plaint in a matter relating to persons in the service of the Republic-Amendment replacing a cause of action, after it had ceased to exist, by a new cause of action so as to change the nature of the suit and the cause of action will not be allowed, and if allowed, cannot relate back to the date of filing the suit. Furthermore, the jurisdiction of the civil Court having been vested in the Administrative Tribunal by the promulgation of special statute the jurisdiction of civil Court in respect of Bank employees has been ousted, and in that view of the matter, the plaint was rightly returned by the civil Court for presentation to the proper Tribunal having jurisdiction.

Mansur Ali vs Janata Bank 43 DLR394.

Section 4

Jurisdiction of Administrative Tribunal-It can strike down an order for violation of natural justice and for infringement of fundamental rights but it cannot strike down any bar or rule on the ground of its constitutionality. Duty of court is to see the right given under Article 102(1) is not frittered away or misused.

Mujibur Rahman vs Bangladesh 44 DLR (AD) 111.

Section 4

For legal remedies in service matters civilian employees in Defence Services can well invoke the jurisdiction of the Administrative Tribunal.

Ishaquddin Ahmed @ Md Ishaquddin Ahmed vs Commandant, School of Armour and Centre, Bogra Cantonment, Bogra and others 51 DLR (AD)144.

Section 4

The financial benefit during the period ofdismissal cannot be claimed as a matter of right when such dismissal is set aside on the procedural defect as to show cause notice.

Sujit Kumar Majumdar vs Ministry of Local Government and Rural Development and others 51 DLR (AD) 145.

Section 4

Question of payment of subsistence to the government servant during suspension, relates to terms and conditions of service within the jurisdiction of the Administrative Tribunal.

Sheikh Abdul Hakim vs Government of the People's Republic of Bangladesh and others 52 DLR 333.

Section 4

Unless a final decision is made by higher Administrative Authority after the conclusion of the proceeding under challenge an application cannot be entertained by the Administrative Tribunal, but before such decision to be made by the authority, the right of the petitioner in the service of the Republic and his remuneration, cannot be curtailed by the respondent who had no legal authority to do so. Therefore, the departmental proceeding is held to be without any jurisdiction and it must be perished under the wheel of judicial review.

Shahjahan Howlader (Md) vs Bazlur Rahman & another 52 DLR 358.

Section 4

0rder passed by the Tribunal is declaratory in nature and there was no direction for reinstatement of the petitioner and as such order passed by the Tribunal is not executable.

AKM Ali Imam vs DG, Bangladesh Agricultural Research Institute, & another 54 DLR (AD) 5.

Section 4

The Subordinate Judge could have split up the suit for trying the second cause which is for damages for defamatory statement and for implicating the plaintiff in a false case The claim on account of tort committed by the defendant can be tried by the civil Court.

Khandkar Abul Hussain vs Government of the People's Republic of Bangladesh and others 54 DLR 467.

Section 4

In altering the punishment of compulsory retirement to stoppage of 3 annual increments for 3 years under sub-rule 2(c) of rule 4 of the Rules and thereupon in making the order for the reinstatement of the respondent the Tribunals did not commit any illegality as it was within the jurisdiction of the Tribunals to see the proportionality of the sentence in the given facts of the case.

Government of Bangladesh and others vs Md Afzal Hossain Ansari 55 DLR (AD) 65.

Section 4

The authority imparting any punishment upon a delinquent staff has a duty to see that he has been dealt with in accordance with law and following the principles of natural justice.

Government of Bangladesh represented by the Secretary, Ministry of Post, Telegraph and Telecommunication vs Abul Khair 56 DLR (AD) 183.

Sections 4 and 6

Jurisdiction-The Administrative Tribunal and the Administrative Appellate Tribunal have been established with limited jurisdictions and limited power. The Tribunal gratuitously granting relief acts in excess appeal. The Court's power under clause (3) of Article 103 is very wide-question of retrospectivity or prospectively of section 6A of the Act of 1981 has got no relevance.

Bangladesh Bank and another vs Administrative Appellate Tribunal 44 DLR (AD) 239.

Section 7

The Administrative Tribunal has no power to grant interim relief in respect of a case pending before it for final adjudication.

Kamrul Hasan vs Bangladesh and others 49 DLR (AD) 44.

Sections 10-12

Judicial powers of the Tribunals have been laid down in sections 10-12.

Section 10 provides that subject to this Act, no ·proceedings, order or decision of a Tribunal shall be liable to be challenged, reviewed, quashed or called in question in any Court. Section 11 provides that the provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force. Section 12 gives the Government the power to make rules for carrying out the purposes of this Act. In exercise of the powers under section 12, the Government has in fact made the Administrative Tribunals Rules, 1982, by Notification No. SRO 92-L/82-JIV /IT-3/81 dated 12-3-1982, which have been published in the Bangladesh Gazette Extraordinary on 12-3-1982.

Saifur Rahman vs Secretary, Ministry of Agriculture 41 DLR 538.

Section 10A

Order given by Administrative Appellate Tribunal-Maintainability of writ petition for enforcement of such order-The Administrative Tribunal can execute, functioning as an executing Court, its own decisions or orders and also the decisions and orders of the Administrative Appellate Tribunal following the provisions of Civil Procedure Code relating to execution of a decree. The petitioner has been given a further remedy by way of punishment for contempt of the Tribunal's authority. The petitioner having failed to exhaust such remedies his writ petition is not maintainable.

Munshi Mozammel Hossain vs Post Master, Faridpur 43 DLR 415.

Administrative Tribunals Rules, 1952

Rule 6(9)

Decision given by the Appellate Tribunal having not been made as per the Rules it did not reach finality and the Tribunal did not become functus officio-It had jurisdiction as an adjudicating body to recall the decision and order rehearing.

Abu Taleb vs Bangladesh 45 DLR (AD) 45.

Rule 7

0rder given by Administrative Appellate Tribunal-Maintainability of writ petition for enforcement of such order-The Administrative Tribunal can execute, functioning as an executing Court, its own decisions or orders and also the decisions and orders of the Administrative Appellate Tribunal following the provisions of Civil Procedure Code relating to execution of a decree. The petitioner has been given a further remedy by way of punishment for contempt of the Tribunal's authority. The petitioner having failed to exhaust such remedies his writ petition is not maintainable.

Munshi Mozammel Hossain vs Post Master, Faridpur 43 DLR 415.

Rule 7

0rder passed by the Tribunal is declaratory in nature and there was no direction for reinstatement of the petitioner and as such order passed by the Tribunal is not executable.

AKM Ali Imam vs DG, Bangladesh Agricultural Research Institute & another 54 DLR (AD) 5.

Administrator General's Act. 1913

Sections 10 & 11

Letter of Administration -It is only the High Court Division which has jurisdiction for the purpose of granting probate or letter of administration to the Administrator General. The grant of letters of administration by the District Judge, Manikganj was illegal and therefore set aside.

Hemendra Lal Homoeo vs Administrator General 45 DLR 512.

Section 11(1 )

Power to direct Administrator General to collect and hold assets -In a case of emergency, impossibility of performance or danger of extinction of trust property, the Court may exercise its extraordinary jurisdiction to sanction sale out of preserving the trust property from being extinguished or evaporated, keeping in mind the interest of all and for the overall need of ultimately preserving the trust property in whatever form it may be preserved in the special circumstances of the case.

Syed Wali Mohammad Salehuddin, Administrator General 44 DLR 268.

Admiralty Courts Act, 1961 & Admiralty Rules, 1912

Admiralty Court of Bangladesh

Admiralty Court of Bangladesh - Its jurisdiction

Bangladesh Supreme Court exercises its admiralty jurisdiction by virtue of Admiralty Court Act of 1861 read with Colonial Courts of Admiralty Act of 1890 (India) in like manner as done in England's Admiralty Courts by virtue of Admiralty Court Act, 1890 read with Admiralty Court Act of 1861.

Kings Shipping Trading Co vs Messrs LS Line 38 DLR 30.

—Jurisdiction of Admiralty Court of England was extended by section 3 of the Administration of Justice Act of 1956.

Kings Shipping Trading Co vs Messrs LS Line 38 DLR 30.

Admiralty Courts Act, 1961

—The Court of Admiralty of High Court Division has derived its jurisdiction from these Acts-The suit is maintainable.

Mahajak Shipping Co Ltd vs MV Sagar 39 DLR 425.

Admiralty Suit

Application for arrest of ship as security for payment of monetary claim. There is nothing on record to show that the plaintiff controverted allegations of the owner of the vessel and then the application for attachment/arrest being belated is liable to be rejected.

Captain Md Mobarak Hossain vs MT Dolores and others 47 DLR 80.

Admiralty Suit

There is no legal bar in the Customs Act to the supply of goods and services to the ship in distress and anchored at any port in Bangladesh. High Court Division was not justified to refuse a decree on the ground that the goods and services were not supplied with the approval of the customs officer on board the vessel.

Giasuddin (Md) vs MV Forum Power and ors 53 DLR (AD) 19.

Sections 2 and 7

"Ship" shall include any description of vessel used in navigation not propelled by oars occurring in section 7 of the Act. The expression "ship used in navigation" shall mean vessels of all kinds in navigation, external or internal.

The Court of Admiralty of this Court would have the same jurisdiction as that of the Court of Admiralty in England and as a matter of fact that Court of Admiralty in England never admitted to have made any distinction between collisions within the body of the country and collision on the high seas.

A cause of action arising out of tort has never been excluded or taken away from the jurisdiction of the High Court either by Act of 1917 or by Ordinance of 1976. This Court has jurisdiction to entertain this suit alleging collision within the internal waters.

Al Falha-Shipping Lines Ltd vs Bangladesh, IWTC 42 DLR 289.

Sections 4-6, 7, 13, 17 and 35

Jurisdiction of the High Court of Admiralty in England over any claim for necessaries supplied to any ship elsewhere in the port to which the ship belongs and have jurisdiction over any claim by the owner or consignee or assignee of any bill of lading of any goods carried into any port in England or Wales in any ship for damage done to the goods by negligence or misconduct on the part of the owner, master or crew of the ship.

Al Falha Shipping Lines Ltd vs Bangladesh JWTC 42 DLR 289.

Section 6

Provisions of section 6 of Admiralty Court Act, 1861 is the relevant law for the present dispute, According to this section, the High Court Division of the Supreme Court can only exercise jurisdiction over any claim for damage done to the goods or any part thereof by the negligence or misconduct of or for any breach of duty or breach of contract on the part of owner, master or crew of the ship.

Claim for damages was not a claim for damage to the goods, rather the claim rests on the contribution to be made by the petitioner towards the general average loss resulting from the damage suffered by the ship itself. If does not fall within the mischief of provisions of section 6 of the Act of 1861.

Admiralty jurisdiction cannot be exercised in deciding the suit wherein no allegation has been made as to damage to goods. Section 6 of the Admiralty Courts Act, 1861 cannot be invoked.

Mere allegation of breach of contract or misconduct on the part of the ship owner, the master and the crew of the vessel, is not enough to invoke the provision of section 6 of the Admiralty Courts Act, 1861.

Administration of Justice Act, 1956 is not applicable to Bangladesh. The decision in the case reported in 34 DLR (AD) 110 discussed, A careful reading of the decision in the case of Al-Sayer Navigation Co does not also support the contention of the learned Counsel of the plaintiff as in the said decision it has not been held that the Administration of Justice Act, 1956 is applicable in Bangladesh. The decision so far as it relates to the Admiralty jurisdiction of the courts in England, has traced the enlargement of the jurisdiction of the Admiralty Court in England from time to time by enactments of the British Parliament.

TCB vs MV Corina 41 DLR 127.

Section 6

In an action in rem under Admiralty Jurisdiction the proceeding is commenced by the arrest of the res, the ship, such arrest is not an interlocutory order.

Doon Valley Rice Limited vs MV Yue Yang and others 48 DLR 531.

Section 6

"Damages done to the goods" as is appearing in section 6 has to be construed liberally so as to include constructive damage, thus it shall apply to non-delivery or short delivery of goods.

Doon Valley Rice Limited vs MV Yue Yang and others 48DLR 531.

Section 6

The language of this section, which confers jurisdiction . upon the Court of Admiralty is very specific and definite as to persons who cart raise a claim in the Court of Admiralty. Among the persons entitled to raise a claim in the said Court, an insurer is not included.

Eastern Insurance Co Ltd vs DB Deniz Nakliyati TAB 46 DLR (AD) 185.

Section 6

Maritime claim-Suit by insurer relating to declaration of General Average whether maintainable under the Admiralty Jurisdiction-There is no cause of action shown as regards any damage done to goods and there is no prayer for decree of compensation for any damaged goods. Decree for damages must be prayed in an admiralty suit and the prayer relating to declaration of General Average may be made as additional or consequential relief for damage to goods by carrier during the voyage. The declaration as prayed in the present case cannot independently come within the purview of any of the provisions of the Admiralty Court Act. The plaintiff's suit is just like a declaratory suit of civil nature which is not contemplated under provisions of the Admiralty Court Act.

Sadharan Bima Corporation vs MV Birba 44 DLR 171.

Section 6

In an admiralty suit where the plaintiff fails to produce the original bill oflading, the owner. of the ship or its master or agent cannot give delivery order of the cargo and if it is so given, the carrier shall be liable for breach of contract. In order to invoke the court's admiralty jurisdiction two conditions are to be satisfied, one is the damage done to the goods on board the ship by negligence or misconduct of the owner, master or crews of the ship and the other breach of the contract in relation to the cargo.

Madina Vegetable and Oil Refinery Industries (Private) Limited vs MT Dolores 45 DLR 740.

Section 6

Although rejection of the plaint was prayed for, the plaint is returned to the filing advocate in exercise of inherent power as the Admiralty Court lacks jurisdiction and the plaint cannot be rejected by such a court, the provision for rejection of plaint having not been made applicable under the rule of the Admiralty Court.

Madina Vegetable and Oil Refinery Industries (Private) Limited vs M T Dolores 45 DLR 7 40.

Section 6

Locus standi to invoke Admiralty jurisdictio~ttly the owner or consignee or assignee of the Bill of Lading of any goods may claim 'damages against the owner, master or crew of the· ship. The plaihtiffmsurer havihg satisfied neither of these descriptions they have no locus standi to invoke the jurisdiction of the Admiralty Court.

Sadharan Bima Corporation vs Bangladesh Shipping Corporation 43 DLR 322.

Section 6

Suit under Admiralty jurisdiction when 'not maintainable-Since the plaintiff is neither the owner nor consignee nor assignee of any Bill of Lading of any goods and since no damage was done to any goods of the plaintiff on board by the defendant, the plaintiff-insurer has no locus standi to invoke the jurisdiction of the Admiralty Court under section 6 of the Admiralty Court Act. The plaint bereturned to the plaintiff with liberty to file it in appropriate court, if not otherwise barred.

Sadharan Bima Corporation vs Bangladesh Shipping Corporation 43 DLR 548.

Section 6

For fundamental breach of the contract the defendants are liable to deliver the consignment in the order and conditions in which the goods were stuffed in the containers and were received by them on board the vessel.

Resource International vs 'MV Sargodha' and others 53 DLR 381.

Sections 6, 7 & 11

Causes arising out of a contract of marine insurance would come under the provisions of Admiraly Act of 1861 for this court to have jurisdiction.

Bengal Liner Ltd, Dhaka vs Sadharan Bima Corporation 42 DLR 281.

Section 11

Jurisdiction of High Court in matters concerning marine insurance or maritime assurance arising out of such contracts and claims arising out of a marine mortgage is covered by section 11 of the Admiralty Courts Act of I 86 I .

Bengal Liner Ltd, Dhaka vs Sadharan Bima Corporation 42 DLR 281'.

Section 34

In the present situation of the case it would be quite just and proper if the proceeding of the principal cause i.e. Admiralty Suit No. 33of1995, is suspended until security is furnished by the ship of the plantiff to answer the judgment in the cross-cause.

GD Alesio, Livomo, Italy, Owner of MV Mauro D'Alesio vs MV Hawai Splendour & others 49 DLR 122.

Section 52

There is nothing in the Shipping Ordinance barring the jurisdiction of Admiralty Court to entertain any claim for damages done by any ship. Bangladesh·

Inland Water Transport Corporation vs Al-Falah Shipping Lines Ltd and others 51 DLR (AD) 71.

Section 52

The Admiralty Court bas jurisdiction to entertain and decide suit for compensation arising out of the cause taking place both in inland water and on the high seas.

BIWTC vs Al-Falah Shipping Lines Ltd and others 51 DLR (AD) 71.

Admiralty Rules, 1912

Rules 23 & 31

The rules being enabling provisions do not in any way circumscribe the discretionary jurisdiction of the Admiralty Court to either reduce· or enhance the amount of Bank Guarantee for release of the arrested vessel.

SM Monirul Islam vs MV You Bang 51 DLR (AD) 90.

Agrani Bank (Employees) Service Regulations, 1981

Regulation 28(1)(e)

Second show cause notice-Since the departmental enquiry against the employee was held and his order of dismissal was passed on the basis of report of enquiry after the present Regulation came into force, bis case will be governed by the Regulation and he will be entitled to a second show cause notice before his dismissal from service. This having not been done the dismissal is illegal.

Fazlul Karim vs Agrani Bank and others 45 DLR 375.

Alienation of Land (Distressed Circumstances) (Restoration) Ordinance, 1976

Alienation of Land (Distressed Circumstances) (Restoration) Ordinance [XXVIII of 1976]

Section 4

Right of reconveyance accruing to a transferor is based on an agreement by fiction of law.

Khawjee Ahmed Sarkar vs Abdur Razzak Mondal 42 DLR 196.

—Ordinance is silent on the point of heritability of the right of reconveyance. It is manifest from preamble of the evidence that the land transfered should go back to the family of the transferor.

Khawjee Ahmed Sarkar vs Abdur Razzak Mondal 42 DLR 196.

—Right of the transferor under the provision of the Ordinance is assignable as well as heritablePetitioner being a heir is competent to file the application for restoration.

Khawjee Ahmed Sarker vs Abdur Razzak Mondal 42 DLR 196.

Sections 8 & 9

There is no provision for filing revision in High Court Division against order-passed by the Munsif on an appeal from an order of the Authorised Officer as his order is enacted to be the final.

Rebati Ranjan Dhar vs Jatish Chandra Dhar 46 DLR 133.

Anti-Corruption Act, 1957 & Anti-Corruption Manual

Anti-Corruption Act, 1957

Section 3

When the investigation is held by any officer of the Bureau of Anti-Corruption, the provisions of section SA of Act II of 1947 shall not be applicable but provisions of section 3 of the Anti-Corruption Act, 1957 shall apply.

Nazrul Islam and others vs State 51 DLR 368.

Section 3

The authority of the AntiCorruption Officer requiring the petitioners to attend and give statements before him in the interest of an inquiry under the provisions of section 94 of the Code cannot be questioned.

Abdul Hafiz (Md) and others vs Director General, Bureau of Anti-Corruption, Government of Bangladesh 51 DLR 72.

Section 3

The contention that action of notice by the respondent No. 3 was violative of Article 35(4) of the Constitution is of no substance since the same were issued in connection with an enquiry as regards the information received against the petitioners. The petitioners are not accused of any offence and, as such, protection under Article 35(4) is not available to them.

Abu Siddique and anr vs Ministry of Defence & ors 54 DLR (AD) I 54.

Section 3

The officers of the AntiCorruption Bureau in connection with investigation of a complaint to ascertain the truth thereof are authorised to issue notice under section 160 CrPC.

Abu Siddique and anr vs Ministry of Defence & ors 54 DLR (AD) 154.

Section 4

The contention that the provisions of this section are applicable only against public servants is not acceptable in law.

Tarique Rahman vs Director General, Bureau of Anti-Corruption and others 52 DLR 518.

Sections 4 & 9

Satisfaction under section 4 of the Act is the satisfaction of the Government alone as the satisfaction aspect of the section is retained by the Government and it cannot be delegated as it is incapable of delegation.

Begum Tahmina vs Government of Bangladesh and others 52 DLR 503.

Section 4(1 )

In the absence of anything to show that the impugned order was issued under the authority of the highest functionary of Government, it cannot be said that it was issued by the Government.

Mustafizur Rahman and 3 others vs. DG Anti-Corruption and others 49 DLR 599.

Section 4(1 )

There is no fundamental right to privacy or secrecy in respect of property and wealth of a person and therefore calling upon the petitioners to submit statement of their properties does not violate any fundamental right guaranteed by the Constitution.

Tarique Rahman vs Director General, Bureau of Anti-Corruption and others 52 DLR 518.

Section 4(1 )

There is no scope for violation of the fundamental rights of the petitioner as guaranteed by Article 35(4) of the Constitution inasmuch as the issuance of the notice under section 4( 1) of the Act will be presumed to be the fact collection process only.

Begum Tahmina vs Government of Bangladesh and others 52 DLR 503.

Section 4(1)

It does not reflect from the evidence that before issuance of notice any preliminary inquiry was done by the Government or any direction was given to the Bureau of AntiCorruption to issue notice on being satisfied that the appellant had properties disproportionate to his income. So the notice served under section 4(1) of the Act is lacking in jurisdiction.

Saidur Rahman vs State 54 DLR 489.

Sections 4(1) & 9

Even in exercise of power under section 9 of the Anti-Corruption Act the initial satisfaction of the Government as provided in section 4(1) of the Act cannot be delegated and the initial satisfaction, before proceeding against the appellant, must be of the Government.

Saidur Rahman vs State 54 DLR 489.

Sections 4(2) & 5(1)

Provision of the Act can be resorted to enquire into or for investigation of pecuniary resources or property of any person whether he is a public servant or any other else or in other words 'an ordinary citizen'.

AKM Muhituddin vs State 51 DLR 274.

Anti-Corruption Manual

Articles 31 and 50

The information asked fir by the impugned order from the petitioner is not something which is capable of being searched. Therefore the information asked for does not conform to section 94 of the Code. The impugned order purportedly under section 94 of the Code and Articles 31/50 of the Anti-Corruption Manual is unauthorised and illegal as they do not confer any power to direct a person to give information.

Imtiazur Rahman Farooqui (Md) (MI Farooqui) vs Bureau of Anti-Corruption and others 51 DLR 421.

Section 10(d)

In view of the clause of the agreement between the contending parties and having regard to the decisions, the Subordinate Judge, Arbitration Court, Dhaka was not within its jurisdiction in appointing an arbitrator.

British Airways PLC vs Bangladesh Air Services Pvt Ltd 48 DLR 249.

Arbitration Act, 1940 & Arbitration Act, 2001 & Arbitration Act, 1950 (English)

Arbitration Act, 1940

1st Schedule, Para 2

As the Board of Arbitrators constituted under the agreement between the partners consisted of even number of members, they ought to have appointed an umpire within the prescribed time.

Khitesh Chandra Debnath vs Birendra Chandra Ghose 48 DLR 400.

Arbitration Act, 2001

Sections 7 & 10

The defendant has already commenced a proceeding against the plaintiff before the Tribunal of the MCCI under the arbitration clause of the contract, which is not denied by the plaintiff. If it is so, under section 7 of the Act, the Subordinate Judge would have no jurisdiction to proceed further with the suit.

Bangladesh Jute Mills Corporation vs Maico Jute and Bag Corporation and others 56 DLR 224.

Article 3 of the First Schedule to the Act — Time for award 4 months

The appellant would seem to have no ground to stand upon, since it appears that the award was made beyond the period mentioned therein.

When the arbitration proceedings continued beyond 4 months with the parties raising no objection-Conclusion is the party concerned has waived its right.

Enlargement of time (beyond 4 months) for giving the award by consent of the both parties, permissible-Such enlargement of time may be provided for in the agreement-In the absence of such agreement consent may be inferred by conduct of parties.

Government of Bangladesh vs Jalaluddin Ahmed 37 DLR (AD) 27.

Sections 45-47

0nce an arbitration proceeding in a foreign country is completed, the Arbitral Award, on an application by any party, will be enforced by a court of this country under 1he Civil Procedure Code in the same manner as if it were a decree of the court.

Canda Shipping and Trading SA vs TT Katikaayu and another (Admiralty Jurisdiction) 54 DLR 93.

Arbitration Act 1950 (English)

Section 10-

If the agreement 'provides that Ille dispute shall be referred to arbitration, the Rference should be made to a single Arbitrator.

Section 2(b)-Arbitration award-How it is expressed-There is no particular form for expression of an Arbitrator's decision (award). It is not a judgment and it need not contain the reasoning of the Arbitrator. It is enough if the award contains the decision of the Arbitrator. High Court Division did not err in law in construing the Memo written by the Arbitrator to his superior authority as an award.

Bangladesh & others vs KM Shafi Ltd 43 DLR 217.

Section 2(b)-

Knowledge of making of the award, if any, is not sufficient to fix one with the notice of making of the award within the meaning of Article 178 of the Limitation Act.

Dhaka Leather Complex Ltd BCIC vs Sikder Construction Ltd and another 55 DLR 578.

Section 3-

Item 3-First Sch.-Time limit for arbitration-The conclusion of arbitration proceedings depends upon facts and circumstances of each case. The law has not prescribed a minimum time· limit for this.

Messrs Rising Sun Traders vs Chittagong Port Authority 43 DLR J.

Sections 3 and 8-

When an agreement is silent on the number of arbitrators for. a dispute, the case will be governed by section 3 of the Arbitration Act and reference shall be made according to the provisions of Schedule 1 of the Arbitration Act, which provides that the reference shall be to a sole arbitrator. Section 8 of the Act shall come into play only when the parties fail to concur in the appointment of a sole arbitrator.

Bangladesh Water Development Board vs MR Sikder 55 DLR 682.

Sections 3 and 28-

Government of Bangladesh vs Jalaluddin Ahmed 37 DLR (AD) 27.

Section 8-

Objection against appointment of Arbitrator who he has already entered on the reference following unacceptable - Conduct displayed by the objector appears to be a technical objection not entertainable at a belated stage.

Coal Controller, Government of Bangladesh vs Ventura Industries Ltd 44 DLR (AD) 183.

Section 8 –

If the agreement provides that the dispute shall be referred to arbitration, the reference should be made to a single Arbitrator.

British Airways PLC vs Bangladesh Air Services Pvt Ltd 47 DLR 544.

Sections 8, 30 & 33-

ArbitrationConclusiveness of award-The work order given to the tenderer became an instrument necessary for understanding the contract with him. Though not a part of the contract itself it is a contemporaneous document accepted by both sides throwing light on the interpretation of schedule of work.

Mohammad Eunus and Brothers (Pvt) Ltd vs University of Chittagong 44 DLR (AD) 296.

Section 8(2)-

In view of the clauses of agreement between the contending parties and having regard to the decisions, the Subordinate Judge, Arbitration Court, Dhaka was not within its jurisdiction in appointing an arbitrator.

British Airways PLC vs Bangladesh Air Services Pvt. Ltd 48DLR 249.

Section 8(2)-

Upon the application, it was duty of the Court to be satisfied that there arose really an arbitral dispute in between the parties as to any thing under or out of the contract for reference to the arbitrators.

National Sports Council vs A Latif and Company 53 DLR 386.

Section 8(2)-

ln order to raise an arbitral dispute, there must be some sort of formal demand to be made by 'one side and denied by other side either explicitly or by silence.

National Sports Council vs A Latif and Company 53 DLR 386.

Section 11-

Parties refer their dispute to arbitration to get an amicable settlement which is encouraged even though Arbitrators do not follow strict and delicate procedural technicalities. If any party has lack of confidence in the Arbitrator he may seek his removal in accordance with law.

Messrs Rising Sun Traders vs Chittagong Port Authority 43 DLR 1.

Section 11-

There is no requirement of law that a person serving under the respondent Port Authority cannot function as Arbitrator or that the Arbitrator being their employee for some time in the past could not function as such. If the Port Authority had no confidence in him they could seek his removal.

Messrs Rising Sun Traders vs Chittagong Port Authority 43 DLR 1.

Section 12-

The scheme of section 12, particularly of sub-section (2) thereof, clothes the court with the authority of appointing an arbitrator in its discretion after the parties fail to nominate a common arbitrator.

Bangladesh Water Development Board vs Zakir Construction and Co and another 48 DLR 261.

Section 13-

E.x parte decision in arbitration proceeding-Powers of the Arbitrator-The respondent Port Authority did not appear before the Arbitrator at all nor did they express their intention to appear on receiving notice from the Arbitrator. In such circumstances the Arbitrator is not bound to give them notice about ex parte hearing and passing of ex parte award in the arbitration proceeding before him.

Messrs Rising Sun Traders Ltd vs Chittagong Port Authority. 43 DLR I.

Section 14-

Arbitration proceeding, nature of-A proceeding under section 14(2) of the Arbitration Act, 1940 is not a suit. Section I 0 of CPC is not applicable to proceeding under section 14(2) of the Arbitration Act.

Adamjee Sons Ltd vs Jiban Bima Corporation 45 DLR 89.

Section 14-

In the absence of any evidence or materials or even any allegation arbitrators are guilty of legal misconduct if they come to· any finding to enforce specific performance of a contract.

Bangladesh Telegraph and Telephone Board vs Lithi Enterprise 46 DLR 122.

Section 14-

Period of limitation of 90 days fixed for filing the award in Court will apply only when a notice in writing regarding making of award and signing thereof is given to the parties.

Bajaj Rice Mills vs Bangladesh 41 DLR 504.

Sections 14 and 17-

The learned Subordinate Judge, without following the mandatory provisions of section 14 of the Act, fell in serious error of law in pronouncing the judgment. The decree followed such judgment must be held to be clearly in excess of the award. The appeal from such decree is therefore quite competent and must succeed.

Titas Gas Transmission and Distribution Co. Ltd vs Shams Company and others 54 DLR 128.

Section 14(2)-

The application made under section 14(2) of the Arbitration Act is not a plaint. The application of the petitioner under Order VII rule 11 of the Code for rejection of such application is wholly misconceived.

Dhaka Leather Company Ltd vs 'Sikder Construction Ltd and another 54 DLR 357.

Section 14(2)-

Filing of the Award in Court - Two alternative pre-conditions - Duty of arbitrator or umpire to cause the award to be filed in Court on fulfillment of either of the two preconditions.

Bajaj Rice Mills vs Bangladesh 41 DLR504.

Section 14(2)-

When the appellant took time on number of occasions to file written statement against the award, he had the clear knowledge of the filing of the award. In the circumstances, no further notice was required under section 14(2) of the Arbitration Act to issue.

Dhaka Leather Complex Ltd BCIC vs Sikder Construction Ltd and another 55 DLR 578.

Section 14(2)-

Steps on behalf of the petitioner taking time to file objection against Award filed in Court are sufficient not only to fix him with statutory notice but also dispense with the requirement of such notice by the Court.

Salauddin Jamil vs Amjad Ali Khan and another 56 DLR 87.

Section 17-

If it is found that the appeal is not maintainable under section 17 of the Arbitration Act the same may be converted into a revisional application.

Bangladesh Water Development Board and others vs Progati Prakaushali and another 49 DLR 335.

Section 7-

Pronouncing of the judgment under section 17 is made subject to the expiration of the period of 30 days from the date of service of the notice of filing of the award and this is a condition precedent to· the exercise of the jurisdiction by the Court under the section.

Titas Gas Transmission and Distribution Co. Ltd vs Shams Company and others 54 DLR 128.

Sections 17, 33 & 39(1)(vi) -

Arbitration award-Question of setting aside an award- The appellants did not file any application to set aside the award or to challenge the existence and validity of the award. It is absurd to say that by making the award a Rule of the Court, the Court has refused to set aside the award. The act of refusal must be in pursuance of a positive move by the party affected either under section 17 or section 33. An ex parte order, as in the present case, making an award the Rule of the Court is not amenable to under section 39 of the Arbitration Act.

Bangladesh vs KM Shafi Ltd 43 DLR (AD) 217.

Section 20—

Arbitration on insurance claimIt is only where there is a dispute between the parties with regard to the amount of any loss or damage claimed by the plaintiff that the same could be referred to arbitration. Since the insurance company repudiated the plaintiffs claim wholly the dispute raised was not covered by condition No. 18 of the insurance policy.

Sadharan Bima Corporation vs Dhaka Dyeing and Manufacturing Company Ltd 43 DLR 286.

Section 20—

Forfeiture of insurance claim - The arbitration agreement contained in the insurance policy in question provided that if a claim be made and rejected and an action be not commenced within 3 months after such rejection all benefits under the policy shall be forfeited. The Insurance Company having informed the plaintiff that their claims under the policy were not payable and, as such, rejected the same as per condition No. 13 of the policy and the plaintiff having not commenced any action within 3 months, have forfeited all their rights under the policy.

Sadharan Bima Corporation vs Dhaka Dyeing & Manufacturing Co Ltd 43 DLR 286.

Section 20—

Jurisdiction of ArbitratorWhere the parties submit to the Arbitration without intervention of the court and making prayer for passing the award such parties cannot be allowed to take objection to the validity of the award on the ground of want of jurisdiction of the Arbitrator on the plea that the reference was not in court.

Adamjee Sons Ltd vs Jiban Bima Corporation 45 DLR 89.

Section 29-

Interest for the future, that is, from the date of the award till realisation of the money through section 29 of the Arbitration Act, did not give the Arbitrator this power, he may allow interest on his award till realisation on the same analogy to court's power. This will be in accord with justice and fairness.

BADC vs Kibria & Associates Ltd 46 DLR (AD) 97.

Section 29-

In the absence of agreement the arbitrator or umpire has no jurisdiction to grant interest on awarded amount till relisation. But the Court has jurisdiction in its discretion to grant interest on the awarded amount or part thereof till realisation.

Asamat Zaman (Md) and others vs Government of Bangladesh and others 55 DLR (AD) 139.

Sections 29 and 30-

Arbitrator's power to award interest-Even where the. reference to arbitration to settle a dispute is not in court and section 34 CPC is not applicable and the Interest Act, 1839 is not on the statute book, the Arbitrator is not deprived of his power to award interest in that he derives such power impliedly from the very submission to him to arbitrate the dispute when the agreement does not exclude his power to award interest in explicit language.

Kibria and Associates Ltd vs Bangladesh Agricultural Development Corporation 45 DLR 712.

Section 30-

Award-Limit to Court's interference-The Court is not to go beyond the award in order to examine the evidence. It is competent to set aside the award where it finds error of law on the face of the award or it appears to be bad merely on perusal. If the court is allowed to examine evidence it would be opening floodgate of litigation which is against the spirit of Arbitration Act.

Adamjee Sons Ltd vs Jiban Bima Corporation 45 DLR 89.

Section 30-

In proceedings arising out of arbitration, a court cannot be regarded as a court of appeal from the decision of the Arbitrator. Courts are in favour of non-interference with his findings unless they are perverse or he has misconducted himself or the proceedings.

Messrs Rising Sun Traders Ltd vs Chittagong Port Authority 43 DLR 1.

Section 30-

In proceedings arising out of arbitration a court cannot be regarded as a court of appeal from the decision of -the arbitrator.

Bangladesh Telegraph and Telephone Board vs Lithi Enterprise Ltd 46 DLR 122.

Section 30-

When an award is unanimously passed by the Arbitrator, the Court of Law shall not interfere with it except in a very rare case where the Arbitrators have mosconducted themselves on any legal point or in their personal dealings.

Titas Prokaushali Limited vs Roads and Highways 46 DLR 665.

Section 30 –

Misconduct on the part of the arbitrators may be a ground for setting aside their award. But such misconduct, when not agitated in the trial Court, could not be raised afresh before the superior Courts.

Bangladesh Telegraph and Telephone Board vs Lithi Enterprises Ltd 50 DLR (AD) 63.

Section 30 –

Where after expiry of four months, the parties submitted themselves to the jurisdiction· of the arbitrators and took part in the proceeding, the arbitrators did not act without jurisdiction in passing the award.

Government of Bangladesh vs Chowdhury Syndicate Limited 51 DLR 330

Sections 30, 32 & 33-

Section 30 seems to be exhausitive of the grounds on which an award may be set aside. The combined effect of sections 30 and 33 is that a party to an arbitration agreement or award may question the validity of the award in the manner provided for in section 33 by filing an application.

Chief Engineer Roads and Highways Department vs Concord Engineers and Construction Ltd 48 DLR 243.

Sections 30 and 33-

Pendente lite interest -An arbitrator may allow pendente lite interest on the analogy of court's power to grant interest if the disputes were agitated before it.

The Arbitrator may allow interest pendente lite for a period beyond four months if the prolongation of the proceeding is caused by circumstances beyond his control. Again, to avoid any controversy, the period for pendente lite interest will start from the date on which the Arbitrator enters upon the arbitration proceedings and end on the day the award is made.

BADC vs Kibria & Associates Ltd 46 DLR (AD) 97.

Sections 30 and 33-

Arbitrator's power to award interest-Interest as to pre-reference period-In the absence of any law or agreement providing for payment of interest by an Arbitrator it will not be proper to vest in him power to award interest for the pre-reference.

BADC vs Kibria & Associates Ltd 46 DLR (AD) 97.

Sections 31, 32 & 33-

Arbitration award-It cannot be challenged by way of a suit-Once an award is made and it is filed in Court for making it the Rule of the Court, no suit can be filed for the purpose of avoiding the award. Remedy to the party desiring to challenge the validity of an arbitration agreement or the award itself is as provided in section 33.

Shafiqur Rahman vs Nazmul Hossain Khan 44 DLR 428.

Section 32-

Interpretation of Statute - Meaning of word "effect" occurring in section 32-Whether the phrase "decision upon the existence or effect of an award" is wide enough to cover suits which are aimed at implementing the award-There is bar to suit contesting arbitration award.

BIWTA vs United Trading Corporation 4 I DLR 513.

Section 32-

After coming into force of the Arbitration Act in 1940, any suit either for enforcement of an award or challenging the existence or validity of an arbitration agreement or award is prohibited. Section 32 of the Act makes such prohibition absolute.

Paul Reinhurt Limited and another vs Prime Textiles Spinning Mills Ltd and others 54 DLR 17.

Section 32-

A suit for declaration that a contract (even though it contains an arbitration agreement) is void or that there was no existence of any such contract is not barred under the provision of section 32 of the Act.

Paul Reinhurt Limited and another vs Prime Textiles Spinning Mills Ltd and others 54 DLR 17.

Sections 32 and 33 –

A suit to challenge existence of an Arbitration agreement or an award is not maintainable by reason of section 32 which provides that such a challenge must be made by means of an application and not by means of a suit.

Mohsina Rahman alias Jaya vs Abdul Majid and others 54 DLR I 38.

Sections 32 and 33 –

0nce an award has been made and it is filed in Court for making the same Rule of the Court, no suit can be filed for avoiding the award. The only remedy is to apply to the self-same Court. Since section 32 of the Arbitration Act bars such a suit challenging the validity of an award, we find that the suit was barred by the provision of section 32 of the Arbitration Act. The learned Subordinate Judge should have rejected the plaint on the finding that it was barred by the provision of section 32 of the Arbitration Act. Instead he rejected the plaint as being barred under Article 158 of the Limitation Act which is not tenable.

Shafiqur Rahman vs Mvi. Nazmul Hossain Khan 46 DLR 165.

Sections 32 and 33-

A suit to challenge the existence of an arbitration agreement or an award is not maintainable by reason of section 33 which provides that such a challenge must be made by means of an application and not by means of a suit.

Badsha Miah & others vs Abdul Kader and others 52 DLR (AD) 79.

Section 33-

For mere non including of the properties in the security, the same cannot be brushed aside or rejected.

Mr Sikder vs Bangladesh Water Development Board 49 DLR 113.

Section 33-

Failure to make deposit as required by the proviso renders the application under this section non-existent in the eye of law.

Bangladesh Water Development Board and others vs Progati Prakaushali and another 49 DLR 335.

Section 33—

Where after the filing of an award in court one of the parties to the arbitration, being misled by the order of the court files objections instead of an application to set aside the award, the mistake made by the party is nothing more than an irregularity which is not such as to entitle the court to overlook his objections and to pass a decree in terms of the award.

Bangladesh Water Development Board and others vs Progati Prakaushali and another 49 DLR 335.

Section 33—

The deposit contemplated under the law is a condition precedent for entertainment of the application challenging the award. Deposit made during the pendency of the case cannot be treated a valid deposit as the language of the law is mandatory.

Rajdhani Unnayan Kartripakkha (RAJUK) vs MN Alam and Associates Ltd & another 54 DLR 161.

Sections 33 and 30—

Bangladesh Agricultural Development Corporation vs Kibria and Associates Ltd 46 DLR (AD) 97.

Sections 33 and 30-

Pendente lite interest-An arbitrator may allow pendente lite interest on the analogy of court's power to grant interest if the disputes were agitated before it.

Bangladesh Agricultural Development Corporation vs Kibria and Associates Ltd 46 DLR (AD) 97.

Section 34-

Objection against the maintainability of the suit must be raised at the very preliminary stage of the proceeding even before taking any step for filing written statement. This having not been done, the trial Court's decree is set aside with a direction to write out a judgment on consideration of materials on record.

Nur Nabi Chowdhury vs Bangladesh Krishi Bank 46DLR 509.

Sections 34 & 39-

Since the Subordinate Judge did not dispose of application for referring the dispute to an arbitration, rather kept the same pending for disposal, there is no scope for any appeal against it.

Israil Hossain vs Himalaya Ice & Cold Storage Limited 46 DLR 44.

Section 35-

In order to hold an arbitration proceeding invalid notice of the legal proceeding must be given to the Arbitrator.

Adamjee Sons Ltd vs Jiban Bima Corporation 45 DLR 89.

Section 37(4)-

Where an arbitration agreement provides that a claim shall be barred unless it is referred to arbitration within certain time the Court is empowered to interfere if it is of the opinion that in the circumstances of the case undue hardship would otherwise be caused to a party.

Sadharan Bima Corporation vs The Dhaka Dyeing and Manufacturing Company Ltd 43 DLR 286.

Section 39-

It is not permissible in law to grant interest on the decretal amount of the award in appeal when no such interest was awarded by the arbitrators and no such claim was made by the respondent before the court which made the award rule of the court.

Bangladesh Oil, Gas and Mineral Corporation (Petro-Bangla) vs Nuruzzaman Khan and others 51 DLR (AD) 52.

Sections 39 and 34-

Since the Subordinate Judge did not dispose of application for referring the dispute to an arbitration, rather kept the same pending for disposal, there is no scope for any appeal against it.

Israil Hossain vs Himalaya Ice & Cold Storage Limited 46 DLR 44.

Section 41(b) and item 42^nd Sch-

An Arbitrator exercises a quasi-judicial function. He is both a judge of law and of fact and hence a pure question of law whether the executive authority acted beyond power could be a matter of arbitration reference.

The law in this regard is also well settled that when parties to building construction or supply of goods and the like designate a person to be authorised to finally determine question relating to the execution or non-execution as per terms of the contract and stipulated that the decision of the person shall be final and binding on both the parties, it would be binding except in cases of fraud, gross mistake on his part, as would imply an act of bad faith or failure to exercise an honest judgment on grounds of collusion with the other party or an act of misconduct. AIR 1975 (Madhya Pradesh) 152.

Coal Controller vs Ventura Industries Ltd 46 DLR 5.

Section 41(b)-

When there is no proceeding pending or no proceeding is there before the court it cannot grant an injunction invoking the jurisdiction under section 41(b) of the Arbitration Act.

British Airways PLC vs Bangladesh Air Services Pvt Ltd 47 DLR 544.

Section 42-

After the final decision in the suit and in this appeal therefrom, it is very difficult for us to appreciate the submissions of Mr Rafiqnr Rahman that in view of the arbitration agreement having remained alive, the suit is not maintainable. Moreover, we find no such provisions in the Act barring a suit on the ground of existence of an arbitration agreement.

Bangladesh Water Development Board vs Contractor, Manu Barrage 53 DLR 200.

Army Act, 1952 & Army Regulations, 1960

Army Act, 1952

[XXXIX of 1952]

Section 31-

The charges against the accused were for conspiracy and for killing the President Bangabandhu Sheikh Mujibur Rahman, his family members and relations, which has got no relevance to mutiny as detailed in the aforesaid Acts or Ordinance.

State vs Lieutenant Colonel Syed Farook Rahman 53 DLR 287.

Section 94—

Where a criminal Court and a Court Martial has each jurisdiction in respect of a civil offence, it shall be in the discretion of the prescribed authority to decide before which Court the proceeding shall be instituted.

State vs Lieutenant Colonel Syed Farook Rahman 53 DLR 287.

Army Regulations, 1960

Rules 195 & 196-

As the petitioner was not retained in active military service and as his service was placed at the disposal of the Ministry of Foreign Affairs it can safely be said that his promotion to the higher rank was not required for the interest of the service.

Major General Moinul Hossain Chowdhury vs Government of Bangladesh, and others 50 DLR 370.

Artha Rin Adalat Act, 1990

Artha Rin Adalat Act [IV of 1990]

Section 2-

The suit ·has been filed not for realisation of any loan money from the defendant who was admittedly not a loanee, but he misappropriated the bank money. By no stretch of imagination the suit comes within the provision of Artha Rin Ain.

Agrani Bank vs AFM Emamul Huq 50 DLR 173.

Section 2-

The suo moto conversion of the suit from money suit into a Artha Rin Adalat suit is illegal. As the case was illegally tried by the Adalat by suo moto converting the same from money suit to a Artha Rin Adalat suit the judgment and decree of the trial Court is set aside and the case is sent back on remand for fresh trial in accordance with law.

Agrani Bank vs AFM Emamul Huq 50 DLR 173.

Section 2(Ka)-

It is only the financial institutions as defined in section 2(Ka) which are entitled to institute a case in the Artha Rin Adalat for recovery of loan as defined in section 2(Ka) of the Act and no other person or institution is authorised to file a case before the Artha Rin Adalat.

Sonali Bank vs Ali Tannery Ltd and others 48 DLR 57.

Sections 2(Ka), (Kha) & 5(1), (4)(5)-

The counter-claim of the defendants is not entertainable as only the financial institution can institute the suit in the Court of Artha Rin Adalat for recovery of loan.

Uttara Bank Ltd vs Ali and Co and another 55 DLR 156.

Section 2(Kha)-

Since it is found that amount claimed by the plaintiff is not loan (~ct) within the meaning of section 2(Kha) of the Act in spite of the fact that plaintiff is a financial institution within the meaning of secion 2(Kha) of the said Act, Artha Rin Adalat has no jurisdiction to entertain and dispose of such a suit and, as such, Court below acted illegally in passing the impugned order refusing to reject the plaint. But the suit as filed before Artha Rin Adalat is triable by a civil Court having jurisdiction in the matter. In such circumstances Artha Rin Adalat ought to have returned the plaint to the plaintiff for presentation before the proper Court.

Eastern Bank Ltd vs Subordinate Judge and another 49 DLR 531.

Section 2(Kha)-

The definition clearly indicates that any amount taken from the bank on condition of repayment in whatever name this may be termed comes within the definition of Act. Alco Hygienic Products Ltd. vs.

Islami Bank Bangladesh Ltd 47 DLR 264.

Sections 2(Kha) and 5 –

The Artha Rin Adalat has been specially established for deciding those cases only which are for recovery of the loan advanced by the financial institution. The Artha Rin Adalat has acted absolutely without jurisdiction as no power has been vested in the Artha Rin Adalat to try a case other than the realisation of the loan money.

Harunar Rashid vs Subordinate Judge, (Artha Rin Adalat) Bogra and others 50 DLR 170.

Sections 2(Kha) and 5(1) –

Only those suits which are concerned with the realisation of "loan" as defined in the Act and as disbursed by the financial institution can be filed in the Artha Rin Adalat, no other kind of suit.

Sultana Jute Mills Ltd vs Agrani Bank 46 DLR (AD) 174.

Sections 2(Kha) & 5(1) –

Only those suits which are concerned with the realisation of "loan" as defined in the Act and as disbursed by the financial institution can be filed in the Artha Rin Adalat, no other kind of suit.

Sultana Jute Mills Ltd and others vs Agrani Bank and others 46 DLR (AD) 174.

Sections 2(Kha) and 5(1)-

This Court established under a special law cannot travel beyond the parameter set by the Act itself to adjudicate the claim of any claimant who does not come within the definition of financial institution to realise any claim which is not a debt within the meaning of the Act.

Pubali Bank Ltd vs Md Mamunur Rahman and another 54 DLR 458.

Sections 4 and 7-

Artha Rin Adalat, though a special Court, is nevertheless a Court subordinate to the High Court Division and is, therefore, amenable to the revisional jurisdiction of the High Court Division.

Sonali Bank vs Ali Tannery Ltd and othes 48 DLR 57.

Sections 2(kha) & 5(1)-

Jurisdiction of Artha Rin Adalat was created with particular objective, mainly for recovery of bank dues. To achieve the purpose, Artha Rin Adalat was made deemed to be a civil court but not a full-fledged civil Court with all powers and jurisdiction of a civil Court. It is a civil Court of defined and limited jurisdiction.

Al Baraka Bank Bangladesh Ltd vs Rina Alam and another 56 DLR 588.

Section 2(kha) & 5(1)-

In order to bring subsequent suit within the mischief of section 11, first and foremost requirement is that the Court in which former suit was pending and/or decided must be competent to try subsequent suit, must be of concurrent jurisdiction both in respect of pecuniary jurisdiction and subject.

Al Baraka Bank Bangladesh Ltd vs Rina Alam and another 56 DLR 588.

Section 5-

Cross objection-Whether it is maintainable under the Artha Rin Adalat ActThe right to file a cross-objection would amount to extending the period of limitation prescribed by the Artha Rin Adalat Act which cannot be done as section 5 of the Limitation Act has no manner of application in the case of special limitation. What cannot be done directly cannot also be done indirectly. For such reasons in respect of a decree under the Artha Rin Adalat Act no cross-objection is maintainable inasmuch as cross-objection is in substance an appeal.

National Bank Limited vs New Sonali Garments (Private) Ltd & others. 45 DLR 547.

Section 5—

The nature and function of Artha Ain Adalat coupled with power and authority clearly indicate that it is a special forum of limited jurisdiction and not an ordinary civil Court.

Sultan Alam vs Rupali Bank 46 DLR 292.

Section 5—

In the instant case the suit has been filed not for realisation of any loan money from the defendant who was admittedly not a loanee, but he misappropriated the bank's money. By no stretch of imagination the suit comes within the provision of Artha Rin Adalat Ain.

Agrani Bank vs AFM Enamul Haq 51DLR186.

Sections 5, 6 and 7-

Since the Artha Rin Adalat Act does not provide any provision, directly or indirectly, contrary to provision of Order IX rule 9 CPC an application under Order IX rule 9 CPC can be entertained by the Artha Rin Adalat.

Sonali Bank vs Md Al-Akram (Badal), and others 46 DLR 671.

Section 5(1 )-

The word in this section refers to 'suit' and not to all kinds of legal proceedings.

Bangladesh House Building Finance Corporation vs Jahan Ara Akhter & others 49 DLR (AD) 80.

Section 5(1 )-

The option is with the financial institution either to bring a suit under section 5(1) of the Act or take recourse to the special procedure provided in the relevant law.

Bangladesh House Building Finance Corporation vs Jahan Ara Akhter & others 49 DLR (AD) 80.

Sections 5, 6, 7 & 8—

The Adalat Ain is a special legislation setting up Special Courts for prompt realisation of loans by financial institutions. Such a Court is a civil Court only for limited purposes. A revisional application under section 151 of the Code against any interlocutory order passed by an Artha Rin Adalat is not maintainable in law.

Belayet Hossain vs Bank Indosuez 50 DLR 431.

Section 5(4) –

The "deeming" clause-In enacting special statutes legislature employs deeming clause as a legal fiction. The function of the Court is to find out the limitation of this legal fiction.

Sultan Alam vs Rupali Bank 46 DLR 292.

Section 5( 4)-

All the provisions of the Code of Civil Procedure, in pursuance of section 5(4) of the Artha Rin Adalat Act, will be applicable in trying and disposing of a suit by the Artha Rin Adalat.

Sonali Bank vs Md Al-Akram (Badal), and others 46 DLR 671.

Section 5(4) –

The court below has correctly rejected the application under section 24 of the Code of Civil Procedure since the case pending in the Artha Rin Adalat cannot be heard analogously with any other case filed in any other normal Court created by the Civil Courts Act.

Ripon Packaging and Accessories Ltd vs Eastern Bank Ltd and another 54 DLR 31.

Section 5(4) –

Under section 5(4) of the Ain, Artha Rin Adalat is a Civil Court having all the powers and jurisdiction under the Civil Procedure Code subject to the provision of the Ain.

Antibiotic Stores and others vs Subordinate Judge and Artha Rin Adalat and another 55 DLR (AD) 13.

Section 5(4)(5)-

An aggrieved party i.e. a judgment debtor, has only the forum of appeal when a decree is passed either on contest or ex parte. Provisions of the Code of Civil Procedure is applicable subject to this special law.

MAC, Proprietor Mahtabuddin Chowdhury and another vs Agrani Bank 47 DLR 233.

Section 5(5)-

This provision makes the Code of Civil Procedure applicable to the proceeding of the Artha Rin Adalat, but only if the Adalat Act does not contain anything different.

Jute Mills Ltd VS Agrani Bank 46 DLR (AD) 174.

Section 5(5)-

From the absence of any provision in the Ain prohibiting filling of an application under Order IX rule 9 of the Code and from the specific mention of the Code in subsection (5) of section 5 of the Ain, provisions of Order IX rule 9 of the Code may be followed by the plaintiff financial institution before the Artha Rin Adalat for setting aside an ex parte order of dismissal of the suit for default.

Islami Bank Bangladesh Limited vs Al-Haj Md Shafiuddin Howlader & another 52 DLR (AD) 76.

Section 5(5)-

Owing to absence of any provision in the Ain prohibiting filing of an application under Order IX rule 9 of the Code and the specific mention of the Code in sub-section (5) of section 5 of the Ain, the provisions of Order IX rule 9 of the Code may be followed by the plaintiff financial institution before the Artha Rin Adalat for setting aside an ex parte order of dismissal of the suit for default.

Agrani Bank vs Artha Rin Adalat and others 55 DLR 389.

Section 5(5)-

Though High Court Division found relying upon the case of Sultana Jute Mills Ltd that a revisional application under section 115 of the Code against an order of the Artha Rin Adalat is not maintainable made the Rule absolute invoking inherent power of the court under section 151 of the Code.

Agrani Bank vs Artha Rin Adalat and others 55 DLR 389.

Sections 5(4) and 7(1)-

Right to prefer appeal or revision to a superior Court is not a fundamental right, but is only a creature of statute.

Nurul Amin vs Pubali Bank 46 DLR 506.

Section 6-

Section 115(1) of the Code of Civil Procedure is not maintainable against an order passed by the Artha Rin Adalat. We act under section 151 (I) of the Code and make the Rule absolute with a direction to the Adalat to return the plaint to the filing Advocate for presentation before the proper court.

Kazi Gowaherul Islam (KJ Islam) vs Standard Co-operative Credit Society Ltd and another 50 DLR 333.

Section 6-

There is a complete ouster of jurisdiction of the High Court Division for interference under section 115(1) of the Code of Civil Procedure against any interlocutory orders passed by the Artha Rin Adalat.

Kazi Gowaherul Islam (KJ Islam) vs Standard Co-operative Credit Society Ltd and another 50 DLR 333.

Section 6-

Since special provision for appeal has been made against the judgment and decree passed by the Artha Rin Adalat no application under Article 102 lies against such judgment and decree.

Gazi M Towfic vs Agrani Bank and others 54 DLR (AD) 6.

Section 6-

By inherent power of the court and on revision the order was set aside by the High Court Division and the Appellate Division upheld the decision holding that such inherent power cannot be exercised while acting under specific provision of the Act governing the disposal of the case.

Pubali Bank Ltd vs Mazid and Co and others 54 DLR 340.

Section 6-

Adalat being a Civil Court subordinate to the High Court Division one can seek relief against an interlocutory order under section 115 CPC.

Pubali Bank Ltd vs Mazid and Co and others 54 DLR 340.

Section 6-

In exceptional cases only the High Court Division can entertain revisional application challenging an interlocutory order.

Pubali Bank Ltd vs Mazid and Co and others 54 DLR 340.

Section 6-

Under the provision of section 6(2) of the Artha Rin Adalat Act an application under Order IX rule 13 CPC praying for setting aside ex parte decree cannot be filed without depositing half of the decretal amount.

Pubali Bank Ltd vs Mazid and Co and others 54 DLR 340.

Sections 6 and 7-

Interlocutory order passed by the Artha Rin Adalat is not amenable to revisional jurisdiction.

Iftekhar Afzal and another vs Pubali Bank Limited and others 50 DLR 623.

Sections 6 & 7-

The proceeding initiated by filing a cross-objection is in substance an appeal-the respondent is liable to pay necessary court-fee and observe other formalities necessary for preferring an appeal. Cross-objection filed beyond 30 days was rightly rejected. The cited case AIR 1931 Cal. 100 has no relevance.

Zahirul Islam vs National Bank Ltd 46 DLR (AD) 110.

Sections 6 and 7-

The High Court Division is not vested with the revisional jurisdiction against any order passed by the Artha Rin Adalat.

Shahidullah (Md) vs Eastern Bank Ltd and others 54 DLR 41.

Sections 6 and 7-

Under the Ain of 1990 two remedies were available to judgment-debtorplaintiff-appellant. One, a petition under Order IX rule 13 of The Code and the other an appeal before the High Court Division. In both cases deposit of half of decretal amount was a positive requirement and mandate. The plaintiffsappellants without availing the remedies available to them challenged the rightness of the judgment arid decree in a suit before a court of ordinary civil jurisdiction. The suit, thus, is eminently barred by law justifying rejection of plaint.

Delwar Hossain and others vs Janata Bank and others 55 DLR 585.

Sections 6 and 9-

Artha Rin Adalat - Administrative and appellate authority relating to its functions - Except the power of transfer of a suit from one Artha Rin Adalat to another Artha Rin Adalat, the District Judge has not been given any jurisdiction over the suits cognisable by an Artha Rin Adalat. Artha Rin Adalat Act has made the Artha Rin Adalat subordinate to the High Court Division. A decree passed by an Artha Rin Adalat could not be interfered with except in accordance with the provisions of the Act.

National Bank Limited vs New Sonali Garments (Private) Ltd & others 45 DLR 547.

Section 6(2)-

Since the aggrieved party sought relief before the court in revisional jurisdiction challenging the impugned order which on the face of it is illegal, it will not be proper to say that High Court has no jurisdiction to set aside the same on the ground that no revision lies against an interlocutory order passed by the Artha Rin Adalat.

Pubali Bank Limited vs Mazid and Co and others 54 DLR 144.

Section 6Ka-

In view of the language used in section 6 ka of the Artha Rin Adalat Ain, 1990 the provisions of section 56 of the Code of Civil Procedure will not be a bar in passing an order for detention or arrest of a woman in execution of a decree for payment of money.

Hazera Begum vs Artha Rin Adalat and another 54 DLR 78.

Section 6(Ka) –

Under section 6 ka of the Act, the Adalat has been given power to pass an order which may not be in conformity with the provisions of the Code of Civil Procedure relating to execution of a decree.

Hazera Begum vs Artha Rin Adalat and another 54 DLR 78.

Section 7-

There is no provision for any appeal against an interlocutory order passed by the Artha Rin Adalat, rather the proviso to section 7 of the Act has expressly created a bar against such order.

James D Sarker vs Rajshahi Krishi Unnayan Bank 44 DLR 394.

Section 7-

The Code of Civil Procedure is not applicable for the purpose of an appeal against an order of Artha Rin Adalat not being a decree, judgment or final order under Order IX rule 13 of the CPC. In that view of the matter, the order of the Artha Rin Adalat refusing to set aside an auction sale held in an execution proceeding being only an ad interim order is not appealable.

Aminul Hoque vs Janata Bank 46 DLR 614.

Section 7-

Artha Rin Adalat-It is not an ordinary civil Court-Under the Artha Rin Adalat Act, High Court Division is the appellate forum both against the decree or an order of rejection of an application under Order IX rule 13 CPC passed by an Artha Rin Adalat. The period of limitation is the same for an Appeal and a Misc. Appeal. The normal period for preferring a regular or Misc. Appeal in his court is 90 days. The period of limitation for preferring a Misc. Appeal under the Artha Rin Adalat Act is 30 days. It is therefore quite clear that the Artha Rin Adalat is not an ordinary civil Court but a special civil Court.

National Bank Limited vs New Sonali Garments(Private) Ltd & others 45 DLR 547.

Section 7-

That the suit against the petitioner was barred by limitation and in excess of the Court's jurisdiction are matters to be agitated in appeal and not under the writ jurisdiction.

Zahirul Islam vs National Bank Limited and others. 46 DLR (AD) 191.

Section 7-

Delay-High Court Division has no power to condone the delay in respect of an appeal preferred beyond 30 days against the judgment and decree of an Artha Rin Adalat.

National Bank Limited vs New Sonali Garments (Private) Ltd & others 45 DLR 547.

Section 7-

Limitation-Mode of calculation -Superficially there is hardly any distinction between 30 days and one month of limitation provided for in these laws. By judicial interpretation it has been held that the two are not identical. The mode of calculation on the basis of 30 days and that on the basis of one month are different as approved by the Appellate Division of our Supreme Court.

National Bank Limited vs New Sonali Garments (Private) Ltd & others 45 DLR 547.

Section 7-

Remedies against an ex parte decree under the Act is either by an application or by an appeal and the requirement in both the cases being deposit of 50% of the decretal amount. There is no short-cut by invoking section 151 even on ground of fraud.

Nur Islam (Md) vs Agrani Bank 49 DLR (ADJ 135.

Section 7-

The manner in which stay of execution of decree passed by the Artha Rin Adalat was obtained cannot be supported but the fact remains that the High Court Division cannot interfere under section 115 of the CPC in an interlocutory matter passed by the Artha Rin Adalat.

Agrani Bank vs W Rahman Jute Mills Ltd and ors 51 DLR 235.

Section 7-

Even in the event of· granting time by the High Court Division for depositing, the deposit in the case not having been made within the statutory time, cannot be construed to be a valid deposit for entertainment of a memorandum of appeal.

Abdus Sattar and others vs International Finance Investment and Commerce Bank Ltd 52 DLR (AD) 122.

Section 7-

Appeal before High Court Division under section 7. Furnishing of Bank Guarantee will be sufficient to comply with the requirement of section 7 of the Act.

Habib Bank Ltd vs Eastern Bank Limited and another 52 DLR 537.

Section 7-

If Bank Guarantee is given for a limited period before filing appeal in the High Court Division, it shall have to extend the period of Bank Guarantee before expiry of the previous one.

Habib Bank Ltd vs Eastern Bank Limited and another 52 DLR 537.

Section 7-

The deposit was made on 5-4-99 which is long after the submission of the Memorandum of Appeal. This deposit is not in accordance with the provision of the Ain and, as such, the same cannot be construed as proper and legal deposit.

Abdus Sattar and others vs International Finance Investment and Commerce Bank Ltd 52 DLR 4.

Section 7(1)-

The order passed by the learned Artha Rin Adalat dismissing the suit for default cannot be called a judgement as contemplated under section 7(1) of the Artha Rin Adalat Act.

Sonali Bank vs Md Al-Akram (Badal), and others. 46 DLR 671.

Section 7(2)-

The expression (-) used in sub-section (2) of section 7 of the Act cannot be construed to be "bank guarantee". The expression Artha means (-) as used in this sub-section is equivalent in English cash money and not "Bank Guarantee".

Abdus Sattar and others vs International Finance Investment and Commerce Bank Ltd 52 DLR (ADJ 122.

Section 8-

Artha Rin Adalat Ain is a Special law and the Adalat though a Civil Court is a Civil Court of defined nature having its own forum of appeal and section 5 of the Limitation Act has no manner of application in the Artha Rin Adalat Ain. When there is special limitation in a special law, that is, mandatorily to be followed.

Habib Bank Limited vs UAE Bangladesh, Investment Company Limited and another 52 DLR 25.

Section 8-

Deposit of the US Dollars is not a deposit in accordance with the provision of the Artha Rin Adalat Ain.

Habib Bank Limited vs UAE Bangladesh, Investment Company Limited and another 52 DLR 25.

Section 8(4)-

Where there is no deposit as contemplated under the Ain the tendering of this appeal without deposit is beyond the scope and, as such, the appeal cannot be entertained.

Habib Bank Limited vs UAE Bangladesh, Investment Company Limited and another 52 DLR 25.

Section 9-

Since this appellant had not deposited half of the decretal amount before perferring the appeal, in the eye of law this appeal is incompetent.

Firoz Miah vs Sonali Bank, Wage Earners Branch and others 48 DLR 279.

Articles of Association of IFIC Bank

Article 114 –

Under the garb of recommendation Board of Directors cannot reject the candidature of any person for the election to the office of the director of the Bank.

ASF Rahman and another vs AM Agha Yousuf and others 52 DLR (AD) 127.

Atia Forest (Protection) Ordinance, 1982

Atia Forest (Protection) Ordinance [XXXII of 1982]

Sections 3 and 4(2)-

During the pendency of the appeal appellant filed an application under section 4(2) of the Atia Forest (Protection) Ordinance, 1982 for an order of abatement of the suit. Appeal being a continuation of the suit, the conclusion of the learned Judges of the Division Bench that the suit having been disposed of before the commencement of the Ordinance does not attract the provision of section 4(2) is not tenable.

Province of East Pakistan vs SA Khan 40 DLR (AD) 202.

Section 4(2)-

Division Bench of the High Court Division concluded after reading the provisions of section 4(2) of the Ordinance that there must be a pendency of the suit to attract the provision of abatement but if the suit had been disposed of, the section 4(2) could not be applied for directing the abatement of the suit. The principle that the appeal is a continuation of the suit is not applicable in the present case according to the High Court Division.

Province of East Pakistan vs SA Khan 40 DLR (AD) 202.

Section 4(2)-

Appeal being a continuation of the suit, the conclusion of the learned Judges of the Division Bench that the suit having been disposed of before the commencement of the Ordinance does not attract the provision of section 4(2) is not tenable.

Province of East Pakistan vs SA Khan 40 DLR (AD) 202.

Bangabandhu Sheikh Mujib University Act, 1998

Sections 6 and 45-

Academic Council cannot have any authority to change the Government and University policy- The so called Post Graduate Cell of the Academic Council had no legal enity, though the Academic Council has the power to make recommendations.

Dr Manzoor Rasheed Chowdhury vs Principal, DMC Dhaka and others 54 DLR 578.

Bangla Bhasha Prochalan Ain, 1987

Section 3-

Subordinate Court language - Whether the use of English language is prohibited-There is no dispute that in the Bangla Bhasha Prochalan Ain there is no obstante expression. The legislature is aware of the special law i.e. the Code of Civil Procedure. If the legislature would have intended that section 3(1) of the Act would override section 137 of the Code then the legislature would have provided a non-obstante expression prohibiting the use of English language in the subordinate civil Courts.

Hashmat Ullah (Md) vs Azmiri Bibi 44 DLR 332.

Bangladesh Abandoned Building (Supplementary Provisions) Ordinance, 1985

Bangladesh Abandoned Building (Supplementary Provisions) Ordinance, 1985

Sections 5-7 –

The Government during the absence of the writ petitioners could not form any opinion that the residence of the owners of the case property was for the purpose of prejudicial activities to render the property to come within the mischief of the definition of abandoned property.

Bangladesh vs Rehana Kamal and others 56 DLR (AD) 1.

Section 10 –

Rent actually received by the Government from the date of unauthorised occupation till the date of restoration of possession be paid and vacant possession of the property be restored to the respondent as directed by the High Court Division.

Government of Bangladesh, represented by the Secretary, Ministry of Housing and Public Work and others vs Md Javed Alam 56 DLR (AD) 21.

Section 10(5)-

The Court of Settlement dismissed the case for default although the law requires a decision is to be given as to whether the enlistment of the abandoned building had been done legally or not- The High Court Division rightly sent the case back on remand for deciding the issue in the light of the observation made.

Government of the People's Republic of Bangladesh and another vs Md Shamsul Haque and anr 56 DLR (AD) 101.

Bangladesh Abandoned Property (Buildings in the Urban Areas) Rules, 1972

Bangladesh Abandoned Property (Buildings in the Urban Areas) Rules, 1972

Rule 10

Suit for declaration simpliciter - When the suit property is in possession of the Government, no prayer for recovery of possession is required. If it is declared by the Court that the property is not an abandoned property, the Government will have no reason to possess the same and will be under an obligation to restore possession to the plaintiff and no prayer for recovery of possession as a consequential relief is necessary. The lessor under the government has no independent right and no prayer for her eviction is necessary.

Hashem vs Bangladesh 43 DLR 109.

Rule 10(4A)-

As the sale by tender was not concluded and the tender procedure was continuing and during pendency of the suit the amended rule (4A) came into force, the plaintiff is entitled to have the benefit of the amended rule, although it was not given any retrospective effect.

United Commercial Bank Ltd vs Rahimafrooz Batteries Ltd and others 52 DLR 625.

Rule 14-

In exercise of statutory power the prescribed authority passed orders declaring the disputed property as not being abandoned property and directing its release in favour of the petitioner. This order having not been set aside or revised by any appellate or revising authority, it is not now open to the government or any of its agencies to ignore the prescribed authority's order.

Rana Awan vs Ministry of Works 43 DLR 139.

Bangladesh Abandoned Property (Control, Management & Disposal) Order, 1972

Bangladesh Abandoned Property (Control, Management & Disposal) Order, 1972

[PO 16 of 1972]

Company incorporated as a company and residing in Bangladesh-Property owned by such a company cannot be treated as an abandoned property under PO No 16 of 1972.

Messrs Gannysons Ltd vs Sonali Bank 37 DLR (AD) 42.

Article 2 –

Relying on two authoritative decisions made in 28 DLR (AD) 120 and 30 DLR (SC) 101, it can be said that the facts of the case do not attract the provisions of PO No. 16 of 1972.

Government of Bangladesh vs Messrs Ispahani 40 DLR (AD) 116.

The law of abandoned property contains the clause on exclusion and inclusion. For taking away any property it must be shown that it has come within the mischief of law clearly.

Govt of Bangladesh vs Messrs Ispahani 40 DLR (AD) 116.

The act of declaring the property as an abandoned property was manifestly without jurisdiction. There are papers to show that prima facie the act of declaring the property as an abandoned property was manifestly without jurisdiction as the property does not come within the mischief of abandoned property or whose whereabouts are not known immediately after the liberation of Bangladesh.

Asgar Ali vs Additional Deputy Commissioner 40 DLR 157.

Any act if done wrongly in purported exercise of jurisdiction will not save an order passed under the validity clause of the Constitution.

Asgar Ali vs Addi Commissioner 40 DLR 157.

Article 2 –

0ne living outside of the country will not render his property abandoned unless there is opinion by the Government that his activity is prejudicial to the State.

Halima Bibi vs Chairman 44 DLR 197.

Article 2-

The plaintiff continued to live in Dhaka and did not acquire citizenship of any other country. After the liberation he took shelter elsewhere at Dhaka but when he appeared and claimed his property his whereabouts were very much known. So there is no reason to treat his property as abandoned property.

Hashem vs Bangladesh 43 DLR 109.

Article 2 –

Abandoned property-Without forming an opinion that the petitioner stayed outside Bangladesh for a purpose which was prejudicial to the interest of Bangladesh the Government could not treat the disputed house as abandoned property.

Bakth Bibi vs Bangladesh 45 DLR 105.

Article 2-

To come within the definition of abandoned property a property has to be a property the owner of which is not present in Bangladesh and whose whereabouts are either not known or who has ceased to occupy, supervise or manage in person his property and whose stay abroad is, in the opinion of the Government, prejudicial to the interest of Bangladesh, formation of such opinion is essentially required.

Md Nurul Hoque vs Bangladesh 46 DLR 601.

Article 2-

Abandoned property-Property in tenant's possession whether could be treated abandoned-whenever possession of a house is taken by the Government from lawful tenant of the owner such possession for the purpose of treating it as an abandoned property is illegal, for, the owner is in possession through the tenant. The Government in such a position is not empowered to take possession of the house on plea of absence of the owner and the property does not fall within the meaning of "abandoned property".

Farida Aziz vs Bangladesh 45 DLR 12.

Article 2 –

Before declaring the property as an abandoned property, the Government must form an opinion to the effect that the activities of the owner during his absence were prejudicial to the interest of Bangladesh and without formation of any such opinion, the property cannot be declared as an abandoned property.

Government of Bangladesh, represented by the Secretary, Ministry of Public Works and Urban Development vs lsrat Jahan Kazal 48 DLR 161.

Article 2 –

The High Court Division was not a Court of appeal required to make determination of facts on its own. It could interfere with the findings of a tribunal of fact under Article 102 only if it could be shown that the tribunal had acted without jurisdiction or made any finding upon no evidence or without considering any material evidence/facts causing prejudice to the complaining party or that it had acted malafide or in violation of any principle of natural justice.

Government of Bangladesh, represented by the Secretary, Ministry of Works vs Md Jalil and others 49 DLR (AD) 26.

Article 2 –

At the time of taking over the company as abandoned the formation of the opinion of the Government as to its abandoned character was necessary.

Arif A Shekha and others vs Bangladesh 47 DLR 289.

Article 2 –

The share holders being either Bangladeshi or they were nationals of the country which were not at war with Bangladesh, the vesting of the company and its share under President's Order No 16 of 1972 becomes unauthorised and for that matter the vesting of the said company and its share for the 2nd time under Articles 4(1) and IO(IA) of President's Order No. 27 of 1972 placing the same under the corporation which is resultant on the vesting of the company as abandoned, is not immune from challenge.

Arif A Shekha and others vs Bangladesh 47 DLR 289.

Article 2 –

As the company and its shares have been vested under President's Order No. 27 of 1972 on the ground that it was vested in the Government as abandoned property, under President's Order No 16 of 1972 if it is found that the company and shares thereof does not carry abandoned character then the shares of the petitioners who were found to have been away from the country and have been residing as its nationals in any country which was not at war with Bangladesh could not be treated as abandoned shares.

Arif A Shekha and others vs Bangladesh 47 DLR 289.

Article 2 –

The predecessor-in-interest of the petitioners died here in 1982 leaving behind the petitioners. He continuously lived in this country and paid income tax till death. The Government illegally declared the property as abandoned.

Bibi Zarina and others vs Government of Bangladesh and others 52 DLR 439.

Article 2 –

The mere fact that the petitioner was not found by the survey team in the building in question cannot be the basis for holding the petitioner as an imposter of the original lessee.

Abul Hossain and others vs Bangladesh and others 53 DLR 94.

Article 2 -

The Court of Settlement went beyond its jurisdiction in deciding the question of abandonment of the case building when a suit challenging the abandoned character of the property is pending in a competent civil Court.

Government of Bangladesh and another vs Golam Rabbani and others 55 DLR (AD) 90.

Article 2 –

Since the property does not answer the description of abandoned property, the Government is required to take all possible steps for restoration of possession of the case property to the petitioner.

Javed Alam (Md) vs Bangladesh and others 55 DLR 521.

Section 2 –

The writ-petitioners managing the building through a tenant and realising rent could not be said they have not been occupying, supervising and/or managing the property.

Bangladesh vs Rehana Kamal and others 56 DLR (AD) 1.

Articles 2, 3, 4 and 14 -

The High Court on examination of the different provisions of the Ordinance including section 7 came to the finding that the section can give the appellant exactly the same remedy which she was praying for in the writ petition, that the Court of Settlement has been given the specific power to exclude the disputed property from the impugned list-when the Statute devised an alternative forum for giving complete relief to the appellant, she could not invoke the writ jurisdiction without exhausting the remedy provided for in the Ordinance-This view taken by the High Court Division is well in accord with the settled principle governing exercise of discretionary jurisdiction under Article 102 of the Constitution-When the law itself provides for a remedy which is to be sought for in writ petition-No interference with the impugned judgment is called for.

Begum Lutfunnessa vs Bangladesh 42 DLR (AD) 86.

The appellant filed the writ petition at a time when the Court of Settlement was yet to be constituted. The High Court Division having admitted the writ petition, it was not quite proper to decline interference after three years on the ground of alternative remedy before the Court of Settlement and the very fact that the Government did not care to file an affidavit could be held to be sufficient for the purpose of disentitling the Government from claiming possession and making a list including the appellant's property under the Ordinance.

Begum Lutfunnessa vs Bangladesh 42 DLR (AD) 86.

Articles 2, 4 and 10 –

On 28-2-1972 when the law of Abandoned Property (PO No. 16 of 1972) came into operation, the petitioner was living in the UK and the fact that he managed his disputed property through a local resident at Dhaka and did not care to apply for Bangladeshi citizenship, then the Government cannot be blamed for taking over and treating the disputed property as an abandoned property.

Mirza Shahab lspahani vs Bangladesh 40 DLR 87.

Article 2(1 ) –

The vested property authority did not serve any notice asking the plaintiff to vacate the suit property before granting lease of the property in favour of others, nor did the authority take possession thereof before granting the lease. In such a position the lease as granted is nothing but a paper transaction.

Rabia Khatun vs Bangladesh 46 DLR 447.

Article 2(1 ) –

The whereabouts of the original owner were not known on the date when President's Order 16/72 was promulgated and, as such, the definition clause would bring the property owned by him within the mischief of abandoned property defined in Article 2( l ).

Haider Ali Fakir vs Bangladesh 46 DLR 53.

Article 2(1) –

Abandoned Property- Whereabouts of owner---onus of proof when negative. The real owner being totally absent from the legal proceedings instituted against him since 1972 and having not made any representation to the Government for restoration of his property the onus on the Government to prove that the owner was not present in Bangladesh or his whereabouts were not known or he has ceased to occupy, supervise or manage in person his property is a negative one meaning thereby that the Government do not have to adduce positive evidence of those facts.

Bangladesh, represented by the Secretary, Ministry of Public Works and Urban Development vs Md Suruzzamal and others 48 DLR (AD) 1.

Article 2(1)(ii) –

"Taken over" - These words cannot in the context of their use be taken to be a past participle and meant to refer to past action and not to any action in future. It refers to both, those already taken over and those that may be taken over in future.

Bangladesh vs Dhaka Steel Works Ltd and others 45 DLR (AD) 69.

Article 2(l)(ii)(b) –

The suit property having been requisitioned and taken possession of by the Government on 16-2-1972, before President's Order No. 16of1972 came into force, it cannot be treated as abandoned property.

Md Zaher vs Bangladesh 42 DLR 430.

Article 5(1)(a) –

The ex parte decree obtained for specific performance of contract against the original owner in 1976 has nothing to do with the character of the property as abandoned property and does not answer the description contemplated in proviso (a) so as to exclude the suit property from the list of abandoned property.

Haider Ali Fakir vs Bangladesh 46 DLR 53.

Section 6 –

Kabalas executed and registered in favour of the petitioner and his relations are hit by section 6, the same having been registered after the holding in question was treated as abandoned property.

Awlad Hossain vs Bangladesh 46 DLR 67.

Article 7 –

A person in occupation of an abandoned property if sought to be evicted is entitled to show cause notice.

Halima Bibi vs Chairman 44 DLR 197.

Article 7 –

Permissive occupation cannot give one the right to continue to stay in the property for an indefinite period when it is not found to be an abandoned property and in that view the petitioner is not entitled to a notice for eviction.

Nurjahan Begum vs Bangladesh and others, 46 DLR 654.

Article 7 –

Listing of property as abandoned and publication thereof in the Official Gazette in respect of which notices have not been issued will be per se illegal.

Amela Khatoon vs Chairman, Court of Settlement 46 DLR 18.

Article 7(3)(4) –

Since the Government took over possession of the property by evicting the brothers of the petitioner without issuing notice, such eviction was not in due course of law.

Rafiqul Alam vs Secretary, Ministry of Works, Government of the People's Republic of Bangladesh and others 49DLR 456.

Article 10 –

The respondent being in possession of the property on the basis of agreement for sale has the protection of the provision of section 53(A) of the Transfer of Property Act.

Bangladesh and others vs Kazi AshrafuddinAhmed 55 DLR (AD) 16.

Section 10 –

The predecessor of the appellant having been inducted in the building in question as an allottee of the Government after the property was declared abandoned the appellant cannot claim the same right which a tenant inducted by the owner could claim.

Jalil Brothers and ors vs Humayun Majid and others 56 DLR (AD) 108.

Article 14 –

Once a property vests in the Government under PO No. 16 of 1972 no legal proceedings can be taken against such property.

Bangladesh, represented by the Secretary, Ministry of Public Works and Urban Development vs Md Suruzzamal and others 48 DLR (AD) 1.

Article 14 –

Once the property assumed the abandoned character under President's Order 16 of 1972 and having been in control and possession of the Government it cannot reassume the nonabandoned character after it had been transferred by the Government under the provision of law.

Bangladesh Freedom Fighters' Welfare Trust vs Joint District Judge and Artha Rin Adalat 56 DLR 641.

Articles 15 and 16 –

ln exercise of statutory power the prescribed authority passed orders declaring the disputed property as not being abandoned property and directing its release in favour of the petitioner. This order having not been set aside or revised by any appellate or revising authority, it is not now open to the Government or any of its agencies to ignore the prescribed authority's order.

Rana Awan vs Ministry of Works 43 DLR I 39.

Articles 15 and 16 –

The property even if legally enlisted as an abandoned property and if the same be released by the appropriate authority, namely, the SDO, the Government cannot keep the same on the plea that the same is abandoned property.

Ayesha Khatun Akhtar vs Government of Bangladesh and another 50 DLR 639.

Bangladesh Abandoned Property (Taking Over of Possession) Rules, 1972

Rule 3(8) –

An abandoned property in possession· of any person can only be included in the list of "Abandoned Properties", called "Kha" list in respect of which notices for surrender have been issued and possession taken over as "Abandoned Property".

Lalima Begum and another vs Chairman, Court of Settlement, 1st Court, Dhaka and another 49 DLR 325.

Bangladesh Agricultural Development Corporation Ordinance, 1961

Section 3(2) –

The petitioner should have impleaded BADC as a respondent being the necessary and proper party against whom the relief is actually claimed. The petitioner has impleaded the officers of the Corporation who have no authority to reinstate him to his post. The petition is therefore not maintainable.

KM Fazlul Haque vs Chairman, Bangladesh Agricultural Development Corporation and others 49 DLR 27.

Bangladesh Allocation Rules, 1982

Bangladesh Allocation Rules, 1982

Rule 15 –

The petitioner's case against termination of his service having remained pending for disposal, the order directing him to vacate his residential accommodation is without lawful authority.

Abdur Rahim (Md) vs Bangladesh Sarak Paribahan Corporation (Spl Original) 51 DLR 339.

Bangladesh Bank Order, 1972

Articles 10(6)(8) and 16(18)(b) –

Though the Governor and Deputy Governor of Bangladesh Bank are members of the Board of Directors of Security Printing Corporation (Bangladesh) Limited they do not perform any function of the company for or on behalf of the Bangladesh Bank. They merely discharge their duties as members of Board of Directors of the company and while they discharge such duties and functions they do not discharge such duties and functions in connection with the affairs of the Republic of any local authority. So, their action cannot be challenged under Article 102(2)(a)(i) of the Constitution.

Global Access Ltd vs Bangladesh and others 55 DLR 433.

Article 42( c ) –

The expression "Credit Information" means any information relating to the amount and the nature of loans or advances and other credit facilities granted by a banking company to any borrower or class of borrowers and the nature of security taken from him and the guarantee furnished by a banking company for any of its customers. The information of defaulting borrowers with their names and addresses cannot be said to be "Credit Information."

Stadmax Ltd vs General Manager, Credit Information Bureau, Bangladesh Bank and others 50 DLR 594.

Articles 42(c) and 46(1)-

Disclosure of list of defaulting borrowers does not connote information relating to the amount of loan and its nature nor credit facilities, security or guarantee as has been stated in Article 42(c) of the Bangladesh Bank Order, 1972.

Stadmax Ltd vs General Manager, Credit Information Bureau, Bangladesh Bank and others 50 DLR 594.

Sections 71 and 72 –

The Governor of Bangladesh Bank is a Public Officer and as an authorised person is legally obliged to obey the direction of the Court for payment of the decretal amount out of the Consolidated Fund for the satisfaction of the decree and for such act no further instrument from the unwilling judgment debtor, the Ministry of Works of the Government of the People's Republic of Bangladesh is required.

Bangladesh Bank vs Mrs Rana Awan and others. 46 DLR 678.

Article 84 –

In this Order there is no provision for creating any central Board of Directors, but there shall be a 'Board of Directors' and it is this Board which has been vested with powers required to be exercised by the Bank (Staff) Regulations.

It therefore, cannot be said that the Board of Directors which had taken the decision for the appellant's termination was not properly constituted. Regulation 2, in its proviso, requires Government's approval to any action in respect of officers mentioned in sub-regulation (iii). These officers are senior officers of the Bank whose salaries and allowances are determined by, or require the approval of, the government. There is no evidence that the appellant fell within this class of officers.

Bangladesh Bank vs Mohammad Abdul Mannan 46 DLR (AD) 1.

BANGLADESH BANK ORDER, 1972

Citation: 55 DLR 433, 50 DLR 594, 50 DLR 594, 46 DLR 678, 46 DLR (AD) 1.

Case Year: 1972

Subject: BANGLADESH BANK

Delivery Date: 2018-01-27

Articles 10(6)(8) and 16(18)(b) –

Global Access Ltd vs Bangladesh and others 55 DLR 433.

Article 42( c ) –

Stadmax Ltd vs General Manager, Credit Information Bureau, Bangladesh Bank and others 50 DLR 594.

Articles 42(c) and 46(1)-

Stadmax Ltd vs General Manager, Credit Information Bureau, Bangladesh Bank and others 50 DLR 594.

Sections 71 and 72 –

Bangladesh Bank vs Mrs Rana Awan and others 46 DLR 678.

Article 84 –

Bangladesh Bank vs Mohammad Abdul Mannan 46 DLR (AD) 1.

Bangladesh Biman Corporation

Bangladesh Biman Corporation Employees (Pension and Gratuity) Rules, 1988

Rule 4 –

Since the petitioner's application for voluntary retirement was refused in an arbitrary manner the authority is bound to accept the same and pass orders allowing him voluntary retirement as permitted under Rule 4. Since no allegation could be produced before us or since no proceeding has been started in order to inquire into the alleged allegation, we are of the view that the present petitioner filed the application for voluntary retirement in accordance with the provision of Rule 4 of the aforesaid Rules and the authority shall be bound to accept the same and pass an order allowing voluntary retirement of the petitioner.

M Rashiduzzaman vs Government of Bangladesh and others 49 DLR 43.

Bangladesh Biman Corporation Employees (Service) Regulations, 1919

Sub-Regulations (1), (2) and (3) –

Permanent employee - Resignation with immediate effect-Competent Authority-Whether they are to accept or reject such resignation-Employees' liability-Surrender of pay in lieu of notice period. When a permanent employee resigns with immediate effect, as the petitioner has done Competent Authority is neither required to accept or reject the resignation. Under sub-regulation (3 ), the employee in that case fails to give the required notice in accordance with sub-regulation (1) or sub-regulation (2). The employee's only liability is to surrender pay in lieu of notice period.

MA Mannan vs Biman Bangladesh Airlines 41 DLR 318.

Regulation 11 –

The age limit of the petitioner to remain in service cannot be reduced or curtailed specially when such right of an employee is accrued under the law when he was appointed.

Dalia Parveen vs Bangladesh Biman Corporation and another 48 DLR 132.

Regulation 11A(2) –

An employee can be retired from service by the Corporation in exercise of power under Rule 5 as well as Regulation I IA(2) and it is not correct to say that Rule 5 does not entitle the Corporation to retire its employee from service.

Bangladesh Biman Corporation and others vs Md Yousuf Haroon and others 54 DLR (AD) 161.

Regulation 15-

The position in law being that the Corporation is required to maintain separate list of seniority in view of the provision of Regulation 15 of the Regulations, the High Court Division was in error in holding that the respondent Nos. I and 2 were entitled to be promoted to Pay Group V to the post of Junior Officers Maintenance on the basis of combined seniority list.

Bangladesh Biman Corporation and others vs Md Tipu Sultan and others 53 DLR (AD) 31.

Regulation No. 53-

A "notice of resignation" under Regulation 53 is not a resignation with immediate effect. It is a notice giving a stated time after which resignation takes effect.

Regulation 53 as a whole, it appears that when a permanent employee of the Corporation serves a notice of resignation, one month's, two months' or three months', as the case may be, the competent, Authority may accept or reject the resignation or accept it with immediate effect or from any date after or prior to the expiry of the notice period with payment of the salary for the unexpired portion of the notice period. A "notice of resignation" under Regulation 53 is not a resignation with immediate effect, it is a notice giving a stated time after which the resignation takes effect. The Corporation has been allowed several options to exercise during the notice period.

MA Mannan vs Biman Bangladesh Airlines 41 DLR 318.

Regulations 55 and 56-

Enquiry report of the enquiry officer having not been furnished along with the second show cause notice to the petitioner and his previous record of service having not been taken into consideration before awarding the punishment of dismissal from service, the punishment is illegal.

Mostafa Miah vs Chairman, First Labour Court 46 DLR 373.

Bangladesh Biman Corporation Ordinance [XIX of 1977]

Section 8 –

The authority of the Biman Corporation having been exercised by the competent authority under its delegated power there is no infirmity, in the matter of issuance of the impugned Organisation Order.

Sekandar (Md) and others vs Bangladesh Biman Corporation and others 51 DLR 98.

Section 8(2)—

In the absence of specific provision in the statute or the Regulation the Corporation is competent to issue administrative order to regulate the business in the interest of the Corporation.

Sekandar (Md) vs Bangladesh Biman Corporation and others 51 DLR 98.

Section 14 –

Regulations 19(a) and 19 framed under the Ordinance-Two sets of employees (1) Previous employees (2) Employees recruited afterwards.

Bangladesh Biman vs Aftab Ali 39 DLR (AD) 151.

Section 14 –

Service structure of the Corporation employees framed under the present Act i.e. the Ordinance-Provisions of Regulations 19(a) and 19 must be construed with reference to Articles 14 and 3 l(d) of the Ordinance, which by these terms created the demarcation between the two groups of employees.

Section 14 of the Ordinance is an enabling provision giving the Corporation authority to appoint its employees-The Ordinance did not intend two classes of employees. ·

The Regulations made under the Ordinance are prospective in operation-The respondents having been appointed earlier than the Regulations cannot be brought into the class of "new entrants."-"New entrants" mean only those employees who were appointed after the Regulations came into force-The Regulation of 1979 does not operate retrospectively.

Bangladesh Biman vs Aftab Ali 39 DLR (AD) 151.

Section 14-

Bangladesh Biman, the employer of the petitioners, is a statutory corporation and the contract of employment between the petitioners and the corporation cannot be said to be private contract between two individuals.

Rabia Bashri Irene and another vs Bangladesh Biman Corporation and another (Spl Original) 52 DLR 308.

Section 29-

Corporation empowered to make rules-Provisions ultra vires the Ordinance liable to be struck down.

Bangladesh Biman vs AftabAli 39 DLR (AD) 151.

Section 31(d) –

All the existing employees of the Corporation shall stand transferred and be deemed to have been appointed by the Corporation.

Bangladesh Biman vs Aftab Ali 39 DLR (AD) 151.

Bangladesh Cinematograph Rules, 1972

Rule 3 –

Though there were some lapses in the application for no objection certificate relating to cinematograph exhibition, ultimately they were removed by spot enquiry. The application therefore, cannot be rejected as being defective one.

Shaikh Tabibur Rahman vs Shaikh Nazrul Islam 46 DLR 265.

Rule 5 –

There is no bar against filing a fresh application for cinematograph exhibition. Once an application is rejected it does not mean fresh application will not be allowed, for there is no bar in law for making any fresh application instead of preferring an appeal.

Shaikh Tabibur Rahman vs Shaikh Nazrul Islam 46 DLR 265.

Bangladesh Citizenship (Temporary Provisions) Order & Rules

Bangladesh Citizenship (Temporary Provisions) Order [PO 149 of 1972]

After Act No. V of 1973 came into operation effecting a change in the law of citizenship of Bangladesh, the petitioner has become a citizen of Bangladesh. The matter is otherwise after 1973. There was a change in the law of citizenship of Bangladesh. We find from Annexure-L that the petitioner has very clearly made a representation that by virtue of Act of 1973 he has become a citizen of Bangladesh by operation of law. The facts stated in favour of such claim have not been disputed by the respondent, nor any fact has been alleged so as to connect the petitioner with citizenship of Pakistan after the law of abandoned property came into operation. On the contrary, the petitioner has given convincing evidence that he surrendered his Pakistani passport obtained in 1963 in London and that the said passport has been destroyed by the Embassy of Pakistan as per Government instructions. Of course it is not claimed by the learned Deputy Attorney-General that by acquiring British citizenship the disputed property has become liable to be treated as abandoned property. For, a property can be treated as an abandoned property only if the owner thereof was a citizen of Pakistan at any time after the 25th day of March, 1971.

Mirza Shahab Ispahani vs Bangladesh 40 DLR 87.

Article 2 –

A person who is deemed to be a citizen of Bangladesh under Article 2 is not required to take any oath of allegiance unless he is elected or appointed to any office mentioned in the Third Schedule of the Constitution: per MH Rahman J.

Per Mustafa Kamal J (agreeing): For purposes of being a "deemed citizen" of Bangladesh under Article 2, no person is required to express an allegiance to Bangladesh either by law or by the Rules. He becomes a "deemed citizen" of Bangladesh by operation of law.

The legal fiction as to continuance of residence in Bangladesh as provided in proviso to Article 2 must be limited to the purpose for which it is created and should be strictly construed and should not be extended in the name of beneficial construction beyond its context.

Where the proviso to Article 2 is attracted a citizen will not be required to explain further his case for staying abroad. That provision of law will not however, preclude a citizen from explaining his staying abroad on other good reasons. For example, from December 1971 to September 1973, due to snapping of all communications between Bangladesh and Pakistan and because of non-recognition of Bangladesh by Pakistan, hundreds of Bengali citizens were stranded in Pakistan.

Bangladesh vs Professor Golam Azam 46 DLR (AD) 192.

Article 2 –

If any person wishes to claim citizenship he must prove that he had a permanent home or domicile of origin in Bangladesh and that he had permanently so domiciled in the territory once called East Pakistan on 25th day of March 1971 and he continues to be so resident of that territory thereafter on and from 26th March, 1971. If these are found then he would be citizen of Bangladesh on the commencement day of the Order.

Professor Golam Azam vs Bangladesh 45 DLR 423.

Article 2 –

The proviso to this Article uses the expression "permanent resident" to denote those who had domicile of origin in Bangladesh and then uses the expression "residence" to denote shall be final-Appeal allowed. (Minority view).

Government of Bangladesh vs Messrs Ispahani 40 DLR (AD) 116.

Article 2 –

Unless a Bangladeshi citizen acquired citizenship of any other country, he continues to be the citizen of Bangladesh.

Abdul Qayum vs Bangladesh 44 DLR 340.

Article 2 –

The birth right of anyone to be a citizen of any particular country could not be brushed aside in the absence of any positive contrary intention manifested so as to deprive him of the right to be a citizen of a country where he was born.

Bangladesh vs Rehana Kamal and others 56 DLR (AD) 1.

Articles 2 and 3 –

Mere doubt created at the will of a Government officer about a person's citizenship cannot place any burden of proof on the shoulder of the person concerned.

Nazir (Md) alias Nazir Mia and others vs Bangladesh and others 46 DLR 658.

Article 2 and 2B(1) –

Even a diehard proPakistani born in this country, is entitled to be a citizen of Bangladesh if he fulfils the requirements under Article 2 and is not disqualified under clause (1) of Article 28.

Abid Khan and others (Md) vs Government of Bangladesh and others 55 DLR 318.

Articles 2, 4 and 10 –

Mirza Shahab Ispahani vs Bangladesh 40 DLR 87.

Articles 2 and 6 –

The right of citizenship acquired by birth cannot be lost or destroyed unless it is proved that one has given it up and acquired the citizenship of any other country.

Annada Prasad Das vs DC, Khulna and others 53 DLR 496.

Article 2(ii) –

"Residence" or "permanent residence" both expressions have been used in PO No. 149 of 1972-In Article 2(ii) it is the permanent resident that was contemplated in contradistinction to persons whose residence was in UK-Respondent severed all connections on 28-2-1972 for possessing a Pakistan passport.

Government of Bangladesh vs Messrs lspahani 40 DLR (AD) Jl6.

Article 2(ii) –

Citizenship - Respondent has got a Bangladesh passport which is prima facie evidence of his citizenship of the country. He has not acquired citizenship of any other country-his citizenship of Bangladesh cannot in such circumstances just evaporate.

Abdul Quddus vs Bangladesh 44 DLR 484.

Article 2(ii) and 2(A) –

Mirza Shahab Ispahani vs Bangladesh 40 DLR 87.

Article 2 and 2B(1) –

Even a diehard pro-Pakistani, born in this country, is entitled to be a citizen of Bangladesh if he fulfils the requirements under Article 2 and is not disqualified under clause (I) of Article 2B.

Bangladesh vs Professor Golam Azam 46 DLR (AD) 192.

Articles 2B and 3 –

The question of allegiance is important in considering disqualification under Article 2B. In this case allegiance, as such, is irrelevant as the impugned notification is made under Article 3.

Bangladesh vs Professor Golam Azam 46 DLR (AD) 192.

Articles 2B and 3 –

Dual nationality is provided for in clause 2 of Article 2B. Article 2(B) has provided 'a citizen of Bangladesh shall not merely by reason of being a citizen or acquiring citizenship of a state specified in or under clause (2) cease to be a citizen of Bangladesh." Clause 2 runs as follows:

"The Government may grant citizenship of Bangladesh to any person who is a citizen of any state of Europe or North America or of any other state which the Government may, by notification in the Official Gazette, specify in this behalf."

In other words it has provided for dual international law by many countries. This aspect ofthe case should not detain us for the disposal of this appeal because if there is any doubt as to a person whether he is qualified to be deemed to be a citizen of Bangladesh the question shall be decided by the Government, which decision shall be final (vide Article 3).

Government of Bangladesh vs Messrs Jspahani 40 DLR (AD) 116.

Article 2B(i) –

The Citizenship Order of 1972 as it originally stood did not make "conduct" such as treason, sedition, waging war against Government defined in the Penal Code a disqualification for citizenship. This appears to be a clear and deliberate omission made by the Legislature in the Citizenship Order at the time it was first promulgated on the 15th December, 1972 with retrospective effect from the 26th March, 1971.

Professor Golam Azam vs Bangladesh 45 DLR 424.

Article 2B (i)(ii) –

There cannot be any validation of the impugned notification by implication but by law itself, more so of a past and closed transaction.

Professor Golam Azam vs Bangladesh 45 DLR 424.

Article 3 –

Article 3 does not either specifically or by implication exclude the principle of 'hear the other side:' Per MH Rahman J.

Bangladesh vs Professor Golam Azam 46 DLR (AD) 192.

Article 3 –

Finality of decision- In modern legislation finality clause is very common. This finality clause would only mean the order which is legal is only final and when there is no appeal.

Professor Golam Azam vs Bangladesh 45 DLR 425.

Article 3 –

Ultra vires, question of-This Article is closely connected and dependent on Article 2 of the Order and Article 2 lays down the guideline which is required for a person in order to be qualified as a citizen. Therefore Article 3 of the Order is not ultra vires to Articles 27 and 31 of the Constitution.

Professor Golam Azam vs Bangladesh 45 DLR 426.

Bangladesh Citizenship (Temporary Provisions) Rules, 1978

Rule 8 –

The respondent's request for restoration of his citizenship having not been acceded to earlier, a further appeal under the Rule would have been an idle formality in view of the Government's indecision for long 14 years in taking a decision in the matter: Per Mustafa Kamal J.

Bangladesh vs Professor Golam Azam 46 DLR (AD) 192.

Bangladesh Civil Service

Bangladesh Civil Service (Reorganisation) Order, 1980

Para 2(X) –

While the function of the civil administrative executive services is to assist the political executive in formulation of policy and in execution of the policy decisions of the Government of the day, the function of the judicial service is neither of them. It is an independent hand of the Republic which sits on judgment over parliamentary, executive and quasi-judicial actions, decisions and orders. To equal and to put on the same plane the judicial service with the civil administrative executive services is to treat two unequals as equals.

Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82.

Para 2(X) –

In broad concept the service of the Republic means all services of Bangladesh. It is a generic term and person who is getting emolument because of his service in the Republic is a public officer. In that sense, the member of the judicial service and the magistrate exercising judicial functions are no doubt public officers in the generic term. But within the scheme of the Constitution of the People's Republic of Bangladesh the nature of judicial service has been contemplated as distinct and separate from other works performed by other officers of other cadre services. The judicial service is, of course, included in the definition of service of the Republic but they have been separately treated within the scheme of the Constitution as reflected in Articles 115, 116, l 16A and 152(1) of the Constitution.

Secretary, Ministry of Finance, Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82.

Bangladesh Civil Service Recruitment Rules, 1981

These Rules are equally applicable to all the cadres and no special provisions are framed in the Rules for appointment to police cadre. What Articles 27 and 29 require is that rules, tests or qualification must be reasonable and not arbitrary and must have a rational relationship with suitability of the candidates for appointment to a particular post or a particular cadre.

Gazi Jashimuddin vs Bangladesh, represented by the Secretary, Ministry of Home Affairs, Government of Bangladesh, Bangladesh Secretariat, Dhaka and others 50 DLR 31.

Rules 25 and 26-

To single out the petitioner from the other candidates as not.suitable for police cadre, on the ground of his involvement with a student front of a particular political party means that uniform principle and same standard for verification of character of the candidates are not applied.

Gazi Jashimuddin vs Bangladesh, represented by the Secretary, Ministry of Home Affairs, Government of Bangladesh, Bangladesh Secretariat, Dhaka and others 50 DLR 31.

Bangladesh Civil Service Seniority Rules, 1983

Section 3 –

The Tribunals below having given relief to respondent without hearing the directly recruited officers, the Tribunals acted contrary to law in not dismissing the case on the ground of maintainability alone.

Mahbubur Rahman and others vs Taslimuddin Ahmad and others 54 DLR (AD) 97.

Bangladesh Engineering and Technological University Ordinance, 1961

Bangladesh Engineering and Technological University Ordinance, 1961

Section 12(3) –

Vice-Chancellor's order suspending appointment of BUET professor on probation, legality of- In an emergency the ViceChancellor has the power even to terminate the service of a teacher appointed on probation before the decision of the Syndicate; The court cannot enquire into the existence of emergency or propriety of the action taken by the Vice Chancellor.

Dr. Syed Mahbubur Rahman vs BUET 45 DLR 333.

Bangladesh Engineering and Technological University Employees (Efficiency and Discipline) Statutes

Statute 6, clauses (2) and (3) –

The University authority did not pass the impugned order of suspension prematurely or without lawful authority.

MM Hossain vs BUET 40 DLR 31.

Statutes 6(2), 7 and 15(2) –

From the language of Clause (2) of Statute 15, we do not find anything to suggest that the authority is precluded from passing an order of suspension mJess and until a formal charge-sheet under Statute 7 is served upon a delinquent employee. Clause (2) of Statute 15.

MM Hossain vs BUET 40 DLR 31.

Statute 15, clause (2)-

A delinquent employee cannot be suspended at all unless the authority decides that he is accused of an offence the maximum penalty for which is dismissal or removal from service.

MM Hossain vs BUET 40 DLR 31.

Bangladesh Environment Protection Act, 1995

Bangladesh Environment Protection Act, 1995

Sections 4(3), 8, 10 & 11-

Proviso to subsection 3 of section 4 of the Paribesh Ain has made it mandatory upon the Director-General to give written notice to the owner of the industry-factory concerned giving him chance to take necessary step to rectify the environmental hazard.

Abu Jafar Md Nurul Islam vs DG, Department of Environment and others 56 DLR 1.

Section 14 –

In view of the finding that the impugned order was passed .at the behest of the Minister-in-charge in clear violation of the mandatory provisions of law, it would have served no purpose if an appeal was filed to the appellate authority. Moreso, when the appellate authority has got no power to pass any interim order which was necessary.

Abu Jafar Md Nurul Islam vs DG, Department of Environment and others 56 DLR 1.

BANGLADESH ENVIRONMENT PROTECTION ACT, 1995

Citation: 56 DLR 1, 56 DLR 1.

Case Year: 1995

Subject: BANGLADESH ENVIRONMENT PROTECTION

Delivery Date: 2018-01-27

Bangladesh Environment Protection Act, 1995

Sections 4(3), 8, 10 & 11-

Abu Jafar Md Nurul Islam vs DG, Department of Environment and others 56 DLR 1.

Section 14 –

Abu Jafar Md Nurul Islam vs DG, Department of Environment and others 56 DLR 1.

Bangladesh Freedom Fighters' Welfare Trust (Head Office) Service Rules, 1979

Rule 7(1)-

Termination of service-Under the general rule the junior-most person of the same grade should be retrenched or terminated first. In order to determine seniority the date of appointment/promotion of all officers working in Bangladesh Government and Local Authority Lands and Buildings (Recovery of Possession) Order-Bangladesh Homoeopathic Practitioners Ordinance-Bangladesh House Building Finance Corporation Order the same grade should be considered. The principle of last come first out rule should have been followed before terminating the service of the petitioner.

Shamsuddin Ahmed vs Mukti Joddha Kallyan Trust 44 DLR 524.

Bangladesh Government and Local Authority Lands and Buildings (Recovery of Possession) Order, 1972

Article 2-

Justice demands that even trespassers cannot be evicted forcibly without notice and without giving chance to them to remove themselves willingly.

Aleya Begum and others vs Bangladesh and others 53 DLR 63.

Article 2-

As the legislature intended the notice period to be mandatory, subsequent addition of the proviso was made to reduce the notice period from 30 days to 7 days and thus the time limit of 7 days' notice was amended.

Aleya Begum and others vs Bangladesh and others 53 DLR 63.

Article 2-

The provisions of section 5 of Act 24 of 1970 as amended vide President's Order 85 of 1972 with regard to service of 7 days' notice before eviction are mandatory and not directory.

Aleya Begum and others vs Bangladesh and others 53 DLR 63.

Article 3—

If an allotment of Government land or building was made to a private person or employee .of .an autonomous body, or even a government servant, ·then the only way to evict him therefrom is under section 3 on the ground of breach of any covenant or on determining of the lease. Bangladesh Allocation Rules, 1982 cannot be applied to evict an employee of an autonomous body.

Syed Mozammel Huq vs Bangladesh 44 DLR 403.

Article 5(1)—

Since the government took over possession of the property by evicting the brothers of the petitioner without issuing notice, such eviction was not in due course of law.

Rafiqul Alam vs Secretary, Ministry of Works, Government of the People's Republic of Bangladesh and others 49 DLR 456.

Bangladesh Homoeopathic Practitioners Ordinance, 1983

Bangladesh Homoeopathic Practitioners Ordinance [XLI of 1983]

Section 16(4) –

Mandamus in a matter invoking discretion whether can issue-The right to get approval to recognition as an educational institution is not absolute one but subject to the discretion of the Government. The Government may exercise such discretion either by according or withholding the approval. A writ in the nature of mandamus can in no case be issued to compel the manner in which the discretion is to be exercised.

ABM Quabil Ahmed vs Ministry of Health 44 DLR 385.

Bangladesh House Building Finance Corporation Order, 1973

Bangladesh House Building Finance Corporation Order, 1973

Article 21(3)—

There is no penal clause in President's Order 7 of 1973 to the effect that a transfer of a property mortgaged to HBFC shall be deemed to be invalid in the absence of the prior permission of the Corporation for such transfer. Therefore, the only implication of the Article 21(3) is that if a transfer is made without prior permission, then the transferee shall be bound to pay the loan due to the Corporation.

Bangladesh represented by the Secretary, Ministry of Works, Government of People's Republic of Bangladesh vs Sultana Suraiya Akhter and others 48 DLR 389.

Article 27-

The cases of the House Building Finance Corporation for realisation of loan cannot be tried by the Artha Rin Adalat - If it is so done it will be wholly without jurisdiction.

Jahan Ara Akter Begum and others vs House Building Finance Corporation 47 DLR 158.

Article 27-

'Suit' is a term of article and ordinarily means a proceeding instituted in the civil Court by presentation of a plaint. The action contemplated under Article 27 is, therefore, outside the concept of ·~" which we have found to correspond with 'suit' as provided in the main part of section 5( I) of the Act.

Bangladesh House Building Finance Corporation vs Jahan Ara Akhter and others 49 DLR (AD) 80.

Article 27(7d) –

The power of passing any other incidental orders does not mean that the District Judge has the power to transfer the Miscellaneous Case to any other court for trial under article 27(7d) of President's Order 7 of 1973.

Wazir Jahan Begum and another vs Government of Bangladesh and others (Spl. Originnal) 56 DLR 621.

Article 37 –

Every applicant to whom loan is sanctioned shall be required, amongst other things, to execute a mortgage deed under HBFC. Loan Regulations, 1977.

BHBFC vs A Mannan, Advocate 41 DLR (AD) 143.

Bangladesh Industrial Enterprises (Nationalisation) Order , 1972

Article 4-

PO No. 27 of 1972 provides for nationalisation of certain industrial enterprises. Article 4 of the Order has vested cent per cent shares of an industrial enterprise in the Government but it has retained the separate entity of the enterprise as an independent company under Companies Act.

Nishat Jute Mills Ltd vs Md Sanaullah 40 DLR (AD) 298.

Articles 4 and 24 -

(Read with Memorandum on transfer of Jute and Textile Mills)-

Notice dated 27-9-1982 published in the Gazette is neither a rule nor notification issued under Article 4(2)(3) or 24-Rules framed under Article 24 or 4(3) of PO 27 of 1972 have the force of law.Article 4 Government authorised under Article 4 to transfer or dispose of industrial enterprises and by virtue thereof the Government has issued the notice dated 27-9-1982.

A Rashid vs Government of Bangladesh 39 DLR 122.

Article 4 –

Since the company is directed to be wound up with effect from 5-2-1982, the Government cannot now exercise its powers under Article 8 of the Order.

Razia Sultana vs Government of Bangladesh and others 56 DLR 366.

Articles 4 and 10 –

As the company and its shares have been vested under President's Order No. 27 of 1972 on the ground that it was vested in the Government as abandoned property, under

President's Order No.16 of 1972 if it is found that the company and shares thereof does not carry abandoned character then the shares of the petitioners who were found to have been away from the country and have been residing as its national in any country which was not at war with Bangladesh could not be treated as abandoned shares.

Arif A Shekha and others vs Bangladesh 47 DLR 289.

Articles 4(1) and 10(1A) –

The share holders being either Bangladeshi or they were nationals of the country which were not at war with Bangladesh, the vesting of the company and its shares under President's Order No.16 of 1972 becomes unauthorised and for that matter the vesting of the said company and its share for the 2nd time under Articles 4(1) and 10(1A) of President's Order No. 27 of 1972 placing the same under the corporation which is resultant on the vesting of the company as abandoned, is not immune from challenge.

Arif A Shekha and others vs 47 DLR Bangladesh 289.

Articles 5(a) and 17(1)-

The Appellate Division held in the case of Bangladesh Jute Mills Corporation vs Golam Moula A Chowdhury that the Corporation, though it is not the employer of officers and employees of an industrial unit placed under it, has got power to terminate the services of officers and employees.

Nishat Jute Mills Ltd vs Md Sanaullah 40 DLR (AD) 298.

Articles 5(a) and 17(1)-

Power of control, supervision and regulation includes the power of transfer. As to power of transfer, though the order of transfer was not an issue in that case this Court, by way of putting true construction of Article 17(1), made the observation that the order of transfer from the Jute Mills to the Zonal Office of the Corporation is "no doubt an instance of the powers of control and regulation." Reading the judgment of this Court in that case as a whole there can hardly be any doubt left for the view of this Court that power of control, supervision and regulation under Article 17(1) necessarily includes the power of transfer. This view has been strengthened by the Gazette Notification dated 15 September 1975 as referred to above which specifically empowers the Corporation to take any disciplinary actions against any officer of a nationalised enterprises under it. This Notification was issued under Article 5(a) of PO 27of1972.

The learned single Judge in the instant case was of the view that this Court did not decide the question as to whether the Corporation got power to transfer an employee of one nationalised unit to another nationalised unit but simply made an observation in this regard. With respect, we hold that the view taken and construction of law given by us in that case have not been properly appreciated by the learned Single Judge. He has placed reliance upon another decision of this Court in the case of Bangladesh Freedom Fighters Welfare Trust vs Burhanuddin Chowdhury reported in 33 DLR (AD) 32 1. In that case the Bangladesh Freedom Fighters Welfare Trust terminated the service of an employee of an industrial unit namely, Tabani Beverage Co Ltd., an abandoned property, under PO 16 of 1972 which was placed under the said Welfare Trust for running its business. The Freedom Fighters Welfare Trust was established under PO 94 of 1972. The order of termination was successfully challenged before the High Court Division in a Writ Petition and this Court on appeal affirmed the High Court Division's decision and held the order of termination in valid for lack of statutory authority on the part of the Welfare Trust.

The learned Single Judge in the instant case is found to have placed both the cases on the same footing overlooking the broad fact that the Corporation in the instant case exercised power of transfer under the provision of Article 17 of PO 27 of 1972, whereas there is no corresponding provision in PO 16 of 1972 or in PO 94 of 1972 empowering the Welfare Trust to take disciplinary action against employees of an abandoned property placed under it.

Nishat Jute Mills Ltd vs Md Sanaullah 40 DLR (AD) 298.

Articles 5(a) and 17(1)-

In view of the Gazette Notification issued under Article 5(a) and the provisions of Article 17(1) of PO 27 of 1972, the Corporation's powers to take disciplinary action including power to transfer now stand beyond question.

Nishat Jute Mills Ltd vs Md Sanaullah 40 DLR (AD) 298.

Articles 10 and 17-

The present definition of the local authority as contained in section 3(28) of the General Clauses Act included a corporation like Bangladesh Chemical Industries Corporation or Bangladesh Food and Sugar Industries Corporation which are brought into existence under the provisions of President's Order No. 27 of 1972.

Commissioner of Taxes vs Bangladesh Chemical Industries Corporation 53 DLR 509.

Articles 10 and 17-

The present definition of the local authority as contained in section 3(28) of the General Clauses Act includes a corporation like Bangladesh Chemical Industries Corporation brought into existence under the provisions of President's Order 27 of 1972.

Commissioner of Taxes vs BCJC (Statutory) 54 DLR 202.

Article 10(1A)-

This provision immunises an order of challenge only on the ground that the industrial enterprise had not vested in the Government or was not liable to be vested. If there is a lawful placing, vesting takes place under Article 10(1A) and a double vesting takes place under Article 4(1)(as introduced by Ordinance No. XXV of 1976). But if the placing itself was unlawful, the vesting did not take place, either under Article 10(1A) or Article 4(1).

Bangladesh vs Dhaka Steel Works Ltd and others 45 DLR (AD) 69.

Article 10(1)(d)-

There is a general power of placement of any industrial enterprise by the Government under a corporation, followed by a special power of placement of two kinds of industrial enterprises but restricting the categories in the manner done in 30 DLR (SC) 1 69 was not quite right. When the Government places an industrial enterprise under a Corporation and such enterprise is neither an abandoned property nor owned by a statutory corporation, the vesting of its shares or other proprietary interests takes place for the first time under President's Order No. 27 of 1972.

This is what may be called the Government's general power of placement of any kind of industrial enterprise under a Corporation. Not being vested in the Government before its placement under a Corporation, the Government "shall pay" compensation to its former shareholders.If no compensation is payable, then the industrial enterprise must have been placed under a Corporation not under the general power of placement, but under the power of placement of abandoned properties or those owned by a statutory corporation.

Bangladesh vs Dhaka Steel Works Ltd and others 45 DLR (AD) 69.

Bangladesh Jute Mills Corporation Service Regulations, 1990

Rules 43(5)(6)-

The supply of enquiry report along with the second show cause notice is not an idle formality but the requirement of law which is also in consonance with the provision of principle of natural justice.

Golam Mostafa (Md) and 2 ors vs Bangladesh Jute Mills Corporation and others 52 DLR 299.

Bangladesh Krishi Bank

Bangladesh Krishi Bank Order [PO 27 of 1973]

Article 21-

Issuance of certificate under section 4 of the Act itself on the basis of requisition signed by the Bank manager shall be conclusive proof that the amount specified therein is due to the Bank and further determination is excluded.

Bangladesh Krishi Bank vs Meghna Enterprises and another 52 DLR (AD) 57.

Rule 2(4)-

Bangladesh Krishi Bank is a juristic person that can sue and be sued in its name-In absence of Bangladesh Krishi Bank as defendant the suit against its employees is not maintainable.

Bangladesh Krishi Bank and others vs Al-Haj Md Nurul Islam and another 52 DLR 434.

Bangladesh Krishi Bank Service Regulations, 1988

Regulations 2 and 48(6)-

In interpreting Regulation 48 by the Appellate Tribunal that the exercise of option for pension scheme after retirement was no option the Tribunal unnecessarily referred to the definition of 'Employee' in Regulation without noticing the non-obstante clause in Regulation 48(6).

AK Mohammad Idris vs Bangladesh Krishi Bank and others 48 DLR (AD) 48.

Bangladesh Land Holding Limitation Order, 1972

Bangladesh Land Holding Limitation Order, 1972

Article 3-

Pre-emption under section 26F of the Bengal Tenancy Act (VIII of 1885)-Whether the same can be allowed in favour of the preemptor applicant who admitedly owns more than 100 bighas of land exceeding the land ceiling prescribed by PO No. 98 of 1972-The question of land holding limitation upto 100 bighas of land does not arise as the Munsifs order was passed in 1967 when there was no law limiting and holding to 100 bighas.

Azizur Rahman vs Bhayetullah 40 DLR (AD) 224.

Bangladesh Legal Practitioners and Bar Council

Bangladesh Legal Practitioners and Bar Council Order, 1972

Tribunal's observation regarding extortion of exorbitant fees from the complainant has no basis at all-There is no schedule of fees to be realised from the client-Professional misconduct not defined in the Order- Tribunal has no jurisdiction to decide the amount of fees an Advocate should realise from a client-Every breach of the canons of professional conduct and etiquette cannot attract the mischief of professional misconduct.

Fees of a lawyer vary from lawyer to lawyer depending upon many factors. Even if the appellant had given wrong advice it would not ipso facto amount to any professional misconduct as the complainant has failed to make out a case that with an evil design or malafide motive for some gain the lawyer entangled him in an unnecessary litigation.

In the absence of any specific provision of law regarding realisation or fixation of fees for legal service, realisation or fixing fees is nothing but a contract between the lawyer and the client.

There is no legal bar in PO No. 46 of 1972 to effect a compromise between the parties before the Tribunal since the misconduct complained of is not a non-compoundable criminal offence.

The parties, therefore, may effect a compromise in a case of this nature before the Tribunal provided it is made bona fide with the consent of the parties and the Tribunal and it is not against any law or public policy.

Md Raushan Ali vs Bangladesh Bar Council 42 DLR 201.

Fees paid to a lawyer for professional services is not a loan-The complainant was not entitled to receive back from the appellant any single farthing-The amount of Taka 10,000 received from the appellant is not as a refund of money paid but as a compromise sum.

Tribunal's manner of acceptance of the case on a matter in which amicable settlement was reached between the parties out of their free will and without prejudice to any one disapproved.

Md Raushan Ali vs Bangladesh Bar Council 42 DLR 201.

Article 32(1)-

Canons of Professional Conduct and Etiquette

"(I) An Advocate shall not acquire an interest adverse to a client in the property or interest involved in the case."

Held: A client does not always have a proprietary interest in the suit property. He may have possessory interest.

Further Held: On a discussion of the evidence on record that the appellant's various defences have fallen into pieces. Reprimand is the mildest punishment that can be meted out to an Advocate found guilty of professional or other misconduct. Suspension from practice is a sentence of a higher degree but it really belongs to the intermediate class of punishment. Removal from practice is the ultimate punishment that can be meted out to a delinquent Advocate.

No reason is visible why the intermediate punishment should now be relegated to the softest one. From the moment he received the legal notice from the bank up to the present moment his (the appellant's) attitude is one of defiance, contest and challenge. He has no regrets, no remorse, no repentance either. He has chalked out a path of destructive self-justification. He must pay for his defiance. No extenuating circumstances whatsoever to reduce the sentence is noticed. Appeal is therefore dismissed.

HR Talukder vs District Manager, Public Bank 40 DLR 170.

Article 34-

If a lawyer is found to be careless in rendering legal advice in the course of his professional duty, he would be liable in negligence. Lawyers of this country are under the obligation to act reasonably and carefully in discharging their professional duties except so far it relates to actual advocacy in a Court of law otherwise he will be liable to his client either in negligence for breach of contract or in tort.

Islamia Automatic Rice Mills Ltd vs Bangladesh Shilpa Rin Sangstha and others 55 DLR 463.

Bangladesh Legal Practitioners and Bar Council Rules, 1974

Rule 57-

Suspension of an Advocate- The Tribunal of the Bar Council was not required to give the petitioner an opportunity to be heard before exercising the power to suspend an Advocate. The suspended Advocate is however always at liberty to pray for varying or rescinding the order of suspension by showing cause to their satisfaction. As the rule itself has made the provision for suspension, no illegality was committed by the impugned order.

Majiruddin Ahmed vs Bar Council 45 DLR 35.

Rule 66(1)-

A person who is not a member of Bar Association according to Rule 66(1) does not acquire any right to practice as an Advocate, and as such, his right to vote in the Bar Council election does not arise.

Muslim Ali (Md) vs Dhaka Bar Association and others 51 DLR 446.

BANGLADESH LEGAL PRACTITIONERS AND BAR COUNCIL

Citation: 42 DLR 201, 42 DLR 201, 40 DLR 170, 55 DLR 463, 45 DLR 35, 51 DLR 446.

Case Year: 1972

Subject: BANGLADESH LEGAL PRACTITIONERS

Delivery Date: 2018-01-28

Bangladesh Legal Practitioners and Bar Council Order, 1972

In the absence of any specific provision of law regarding realisation or fixation of fees for legal service, realisation or fixing fees is nothing but a contract between the lawyer and the client.

There is no legal bar in PO No. 46 of 1972 to effect a compromise between the parties before the Tribunal since the misconduct complained of is not a non-compoundable criminal offence.

Md Raushan Ali vs Bangladesh Bar Council 42 DLR 201.

Tribunal's manner of acceptance of the case on a matter in which amicable settlement was reached between the parties out of their free will and without prejudice to any one disapproved.

Md Raushan Ali vs Bangladesh Bar Council 42 DLR 201.

Article 32(1)-

Canons of Professional Conduct and Etiquette

"(I) An Advocate shall not acquire an interest adverse to a client in the property or interest involved in the case."

Held: A client does not always have a proprietary interest in the suit property. He may have possessory interest.

HR Talukder vs District Manager, Public Bank 40 DLR 170.

Article 34-

Islamia Automatic Rice Mills Ltd vs Bangladesh Shilpa Rin Sangstha and others 55 DLR 463.

Bangladesh Legal Practitioners and Bar Council Rules, 1974

Rule 57-

Majiruddin Ahmed vs Bar Council 45 DLR 35.

Rule 66(1)-

Muslim Ali (Md) vs Dhaka Bar Association and others 51 DLR 446.

Bangladesh Legal Proceeding Order, 1972

Article 2-

It is whether deposit of rent in the Office of the Controller is a legal proceeding.

According to section 2 of the Order, legal proceeding includes suit, case, prosecution, appeal, revision and review.

Owning of houses more than one is no ground to hold that the premises in the suit is not required for bona fide use and occupation of the landlord and to dismiss the suit instituted for evicting the tenants from the suit premises on that ground.

Md Osman vs Fatema Khatoon 41 DLR 270.

Article 2-

Deposit of rent in the office of the House Rent Controller is not an institution of a case within the meaning of Article 2 of PO No. 12 of 1972 as the House Rent Controller does not decide the dispute between landlord and tenant. The Controller is a mere conduit pipe.

Deposit of rent in the office of the Controller is not a suit, a prosecution, an appeal, a revision and a review, the question is: is it a 'case' within the meaning of section 2 of the Order? The Rent Controller receives rent like any other counter and he does not determine whether the allegations made in the application for deposit are true or false. The object in accepting such rent is to furnish evidence of tender as kept by the office of the Controller in order to decide the question of default in a properly constituted suit. In this view of the matter, the deposit of rent in the office of the Controller is not an institution of a 'case' as the Controller upon such deposit does not decide the dispute between the tenant and the landlord. In such a situation the Controller is a mere 'conduit pipe'.

Md Osman vs Fatema Khatoon 41 DLR 270.

Article 2-

Deposit of rent in the office of the Controller by filling an application is not a "case" within the meaning of Article 2 of PO No. 12 of 1972.

Viewed from this angle also that the deposit of rent in the office of the Controller by filling an application is not a 'case' within the meaning of section 2 of the President's Order No. 12of1972 and section 4 of the Order has no role to play in this case. In this respect the decision reported in 8 DLR 272 may profitably be referred to. Moreover, the intention of the law-makers to promulgate the Order was to enable persons to institute any legal proceeding which could not be instituted due to atrocities perpetrated by Pakistan occupation army disrupting the normal life and activities. The tenants in this case already having had submitted to the jurisdiction of the Controller cannot take the advantage of the President's Order No. 12 of 1972.

Md Osman vs Fatema Khatoon 41DLR270.

Article 2-

Non-obstanate clause used in Article 2-Interpretation of construction of enacting part of the section-Area of operation of non-obstanate clause-Invalidation of existing law if inconsistent with the new enactment. Averments of the petitioner in paragraphs 14-16 of the plaint and Prayer No. (ii)- The suits must abate as they are hit by the mischief of Article 2.

Chowdhury Tanvir Ahmed Siddiky vs Bangladesh 40 DLR 331.

Article 2-

The whole suit does not abate the rest of the suit minus the averments in paragraphs 14 and 16 and prayer No. II of the plaint.

Chowdhury Tanvir Ahmed Siddiky vs Bangladesh 40 DLR 331.

Article 4(2)-

Government's application under Article 4(2) of PO No. 69 of 1972 is not maintainable in view of the abrogation of earlier law by PO No. 90 of 1972 relating to the suits in Article 2 of the latter law. Inconsistency between two Articles-Two remedies not available.

Chowdhury Tanvir Ahmed Siddiky vs Bangladesh 40 DLR 331.

Article 4(1)-The Government of Bangladesh is not a successor of the defendant, Province of East Pakistan. It substituted itself as a party by a legal fiction under Article 4(1) of PO No. 69 of 1972 and acquired a right to have heard the suit de nova, irrespective of whatever hearing took place before liberation of Bangladesh.

Chowdhury Tanvir Ahmed Siddiky vs Bangladesh 40 DLR 331.

BANGLADESH LEGAL PROCEEDING ORDER, 1972

Citation: 41 DLR 270, 41 DLR 270, 41 DLR 270, 40 DLR 331, 40 DLR 331, 40 DLR 331, 40 DLR 331.

Case Year: 1972

Subject: BANGLADESH LEGAL PROCEEDING

Delivery Date: 2018-01-28

Article 2-

It is whether deposit of rent in the Office of the Controller is a legal proceeding.

According to section 2 of the Order, legal proceeding includes suit, case, prosecution, appeal, revision and review.

Md Osman vs Fatema Khatoon 41 DLR 270.

Article 2-

Md Osman vs Fatema Khatoon 41 DLR 270.

Article 2-

Deposit of rent in the office of the Controller by filling an application is not a "case" within the meaning of Article 2 of PO No. 12 of 1972.

Md Osman vs Fatema Khatoon 41 DLR 270.

Article 2-

Chowdhury Tanvir Ahmed Siddiky vs Bangladesh 40 DLR 331.

Article 2-

The whole suit does not abate the rest of the suit minus the averments in paragraphs 14 and 16 and prayer No. II of the plaint.

Chowdhury Tanvir Ahmed Siddiky vs Bangladesh 40 DLR 331.

Article 4(2)-

Chowdhury Tanvir Ahmed Siddiky vs Bangladesh 40 DLR 331.

Article 4(1)-

The Government of Bangladesh is not a successor of the defendant, Province of East Pakistan. It substituted itself as a party by a legal fiction under Article 4(1) of PO No. 69 of 1972 and acquired a right to have heard the suit de nova, irrespective of whatever hearing took place before liberation of Bangladesh.

Chowdhury Tanvir Ahmed Siddiky vs Bangladesh 40 DLR 331.

Bangladesh Local Councils and Municipal Committees

Bangladesh Local Councils and Municipal Committees (Dissolution and Administration) Order, 1972

Administrators of Union Panchayet, Shahar Committees and Pourashavas took over the functions of the Muslim Family Laws Ordinance, from 20-11-1972.

Mst Ayesha Sultana vs Md Shahjahan Ali 38 DLR 140.

Bangladesh Local Councils and Municipal Committees Service (Retirement) Rules, 1968

Rules 3, 8(7), 14(1) and 2(b)-

Ordering retirement from service after the petitioners rendered 12 years' uninterrupted service. Admittedly the appointment of petitioner was made by the then Chairman of the Pourashava, a competent authority and since they joined services on the basis thereof and rendered 12 years of uninterrupted service, their appointment cannot now be said to be made irregularly. If any irregularity was there initially, it has been cured. After they were confirmed following probation of 2 years under the rules their services cannot be terminated arbitrarily in the manner as done by the impugned letter. The grounds of redundancy on which the petitioners have been retired is a colourable exercise of power. The respondent is therefore directed to reinstate the petitioners and pay them arrears salaries as claimed.

Kanaklata Halder vs Barisal Pourashava 42 DLR 533.

Bangladesh Merchant Shipping Ordinance, 1983

Section 43-

Bengal Liner Ltd Dhaka vs Sadharon Bima Corporation 42 DLR 281.

Bangladesh Paribahan Karmachari Probidhanmala, 1990

Regulation 55(2)-

Though on the face of it the impugned order removing the respondent from service appears to be innocuous one, the decision of the High Court Division that Regulation 55(2) was used as a camouflage for hiding the real purpose of the employer, that of removing the former by way of a major punishment without any proceeding, does not call for interference.

Bangladesh Road Transport Corporation vs Aminur Rahman and another 47 DLR(AD) 66.

Bangladesh Parjatan Corporation Service Rules, 1980

Rule 41 (2)-

If an officer gives a notice in whatever form purporting to terminate his service, the Corporation on its part may issue an order of release and there will be nothing wrong in it. In the case of the respondent his letter seeking permission to retire was practically a notice for termination of his service to which the appellants agreed by issuing the impugned letter releasing him from service. In any view it cannot be said the order was misconceived or illegal.

Bangladesh Parjatan Corporation vs Mofizur Rahman 46 DLR (AD) 46.

Rule 41 (2)(i)(iv)-

Termination of service of employees of a statutory body-No reason was required to be assigned for their termination-If the termination is found to be within the four corners of the law the Court cannot nullify it on the ground that it is harsh. There is no requirement in the Rules that termination would be void when no reason for it was assigned. The principle of natural justice is also not applicable in the case as this principle has been excluded in the Rule itself. The appointing authority has got power to reinstate a terminated employee, in exclusion of some others, on the merit of individual case.

Bangladesh Parjatan Corporation vs Shahid Hossain Bhuiyan and others 43 DLR (AD) 154.

Rule 47-

An officer or employee of a statutory corporation is not entitled to a second show cause notice, unless the Rules specifically so provide. The said Rules do not provide for any second show cause notice. The respondent was given a second show cause notice ex gratia and he had no entitlement to it. The Corporation could have passed the order of punishment after the enquiry was over without serving any second show cause notice.

Bangladesh Parjatan Corporation vs AKM Abul Kalam 47 DLR (AD) 67.

Bangladesh Passport Order, 1973 & Bangladesh Passport Rules, 1974

Bangladesh Passport Order, 1973

Article 5(2)-

Either in case of cancellation or refusal of passport opportunity should be given to the person concerned to show cause against grounds for the action.

Ziauddin Ahmed vs Bangladesh and others 47 DLR 29.

Article 7-

Impounding of a passport- The interest of a private bank is not such a public interest or any interest in which a public is directly connected. For protecting the interest of a private commercial bank the state power to impound a passport to which a citizen has a constitutionally guaranteed right need not be exercised as that would be arrogating to the .government functionary a power not vested by law.

AR Shamsud-Doha vs Bangladesh 46 DLR 405.

Articles 7 and 10-

The alternative remedy does not bar granting of relief in an application under Article 102(1) of the Constitution but such remedy may stand as a bar in an application under Article 102(2) of the Constitution.

Rafique-ulHuq vs Bangladesh 44 DLR 398.

Article 7(2)(c)-

The impugned order of seizure and impounding the passport of the petitioner for an indefinite period debarring him from getting the passport back or from making prayer for fresh passport, have been passed without .any lawful authority and is of no legal effect.

Ekram Ibrahim Lody vs Bangladesh and others 47 DLR 256.

Article 7(4)-

The Passport Order itself contemplates that reasons for revocation of a passport should be in writing and a copy thereof be supplied to the person concerned on demand or the same may be refused in the interest of sovereignty, integrity or security or in the public interest. The order of revocation of passport having been passed without a notice to show cause against any grounds for revocation is not in accordance with law and it violates the fundamental right guaranteed under Articles 15, 27, 32 and 36 of the Constitution.

Syed Mokbul Hossain vs Bangladesh 44 DLR 39.

Article 7(4)—

If the reasons for passing an order for impounding a passport cannot be furnished to the persons concerned in the interest of sovereignty and security of Bangladesh or in the public interest, a reply to a demand for a copy of the order must be given.

Tofail Ahmed vs Bangladesh 54 DLR 403.

Article 7(4)-

Impounding of the passport of the petitioner for the purpose of inquiry against him by the Bureau of Anit-Corruption cannot be considered as a lawful ground for impounding his passport.

Tofail Ahmed vs Bangladesh 54 DLR 403.

Article 10-

The impugned order impounding the passport passed without due compliance with the requirements of Article 10 of the Order has no legal basis.

Rafique-ul-Huq vs Bangladesh 44 DLR 398.

Articles 10 and 7-

Rafique-ul-Huq vs Bangladesh 44 DLR 398.

Bangladesh Passport Rules, 1974

Rule 9-

Passport-Holding of more than one passport- The Bangladesh Passport Order, 1973 puts 'no express embargo on holding more than one passport. Separate passports or travel documents may be issued to a person under the Rules if it is necessary to do so for facilitating his visits to different countries.

Syed Mokbul Hossain rs Bangladesh 44 DLR 39.

BANGLADESH PASSPORT ORDER, 1973 & BANGLADESH PASSPORT RULES, 1974

Citation: 47 DLR 29, 46 DLR 405, 44 DLR 398, 47 DLR 256, 44 DLR 39, 54 DLR 403, 54 DLR 403, 44 DLR 398, 44 DLR 398, 44 DLR 39.

Case Year: 1973

Subject: BANGLADESH PASSPORT

Delivery Date: 2018-01-28

Bangladesh Passport Order, 1973

Article 5(2)-

Either in case of cancellation or refusal of passport opportunity should be given to the person concerned to show cause against grounds for the action.

Ziauddin Ahmed vs Bangladesh and others 47 DLR 29.

Article 7-

AR Shamsud-Doha vs Bangladesh 46 DLR 405.

Articles 7 and 10-

Rafique-ulHuq vs Bangladesh 44 DLR 398.

Article 7(2)(c)-

Ekram Ibrahim Lody vs Bangladesh and others 47 DLR 256.

Article 7(4)-

Syed Mokbul Hossain vs Bangladesh 44 DLR 39.

Article 7(4)—

Tofail Ahmed vs Bangladesh 54 DLR 403.

Article 7(4)-

Impounding of the passport of the petitioner for the purpose of inquiry against him by the Bureau of Anit-Corruption cannot be considered as a lawful ground for impounding his passport.

Tofail Ahmed vs Bangladesh 54 DLR 403.

Article 10-

The impugned order impounding the passport passed without due compliance with the requirements of Article 10 of the Order has no legal basis.

Rafique-ul-Huq vs Bangladesh 44 DLR 398.

Articles 10 and 7-

Rafique-ul-Huq vs Bangladesh 44 DLR 398.

Bangladesh Passport Rules, 1974

Rule 9-

Syed Mokbul Hossain rs Bangladesh 44 DLR 39.

Bangladesh Public Administration Training Centre Employees Service Rules, 1992

Rules 37, 38 and 50(2)—

As the order of termination contained accusation against the employee the same cannot be termed termination simpliciter-it is termination with stigma not tenable in law without giving chance of hearing to the employee.

Momshad Reza and 15 others vs Chairman, Bangladesh Public Administration Training Centre and others 51 DLR 376.

Bangladesh Public Service Commission (Consultation) Regulation, 1979

Regulation 6 –

The advice of the Public Service Commission is not binding upon the authority but the authority is required to consider it and pass any appropriate order.

Government of Bangladesh vs AAM Salekuzzaman and another 52 DLR (AD) 166.

Regulation 9-

Consultation with the Public Service Commission-In passing the order of compulsory retirement there was no violation of any provision of law and consultation with the Public Service Commission was not required as the petitioner was not upgraded till taming of the Recruitment.

Abdul Khaleque (Md) vs Ministry of Law, Justice and Parliamentary Affairs, and others 52 DLR (AD) 147.

Bangladesh Red Crescent Society Order, 1973

Article 7, clause (6)-

The Society is under a statutory obligation to admit persons to any grade in membership of the Society provided those persons seeking membership comply with by the terms and conditions for enrolment or for renewal of membership.

Asaduzzaman vs Bangladesh 42 DLR (AD) 144.

Articles 8, 9(3), 23(2) and 24-

Unlike other associations the Society cannot be dissolved except by law made for the purpose.

Asaduzzaman vs Bangladesh 42 DLR (AD) 144.

Bangladesh Rifles

Bangladesh Rifles Order, 1972

Petitioner belonging to disciplined force discharged from service by an order of an individual officer-They were not dealt with by the Court or Tribunal-Writ is maintainable.

Md Fazlur Rahman vs Government of Bangladesh, Ministry of Home Affairs 41 DLR 459.

Article 11-

Discharge from service is not a punishment mentioned in Article 11 of PO No. 148 of 1972-This argument has no legs to stand. The petitioners have not been awarded any punishment under Article 11 of PO No. 148 of 1972. Discharge from service is not a punishment mentioned in Article 11 of PO No. 148 of 1972.

Md Fazlur Rahman vs Government of Bangladesh, Ministry of Home Affairs 41 DLR 459.

Bangladesh Rifles (Special Provisions) Ordinance [LXXXV of 1976]

Section 6-

Procedure provided in section 6 of the Ordinance No. 85of1976 having not been followed, the impugned orders of discharge from service are not sustainable.

Fazlur Rahman vs Secretary Ministry of Home Affairs 41 DLR 459.

Sections 6 and 8—

There is no material that any proceeding was at all instituted against the petitioner- The present cases are cases of discharge from service with a stigma.

Fazlur Rahman vs Secretary, Ministry of Home Affairs 41 DLR459.

--Discharge from service without assigning any reason can only be made by the designated authority under section 8 of the Order.

Fazlur Rahman vs Secretary, Ministry of Home Affairs 41 DLR459.

Section 8—

When a stigma is attached to a person he cannot be removed without an inquiry proceeding initiated and completed in accordance with law.

Anwar Hossain Sikder (Md) vs Bangladesh and others 49 DLR 505.

Bangladesh Rin Salishi Ain, 1989

Section 13-

The impugned order was coram non judice having been passed by the Chairman of the Board alone without the presence and participation of other members.

Salim (Md) vs AC, Land and Chairman, Debt Settlement Board and others 54 DLR 72.

Bangladesh Road Transport Corporation Employees (Service) Regulations, 1990

Regulation 55(2)-

The Corporation initially wanted to remove the respondent through a proceeding. Having failed, they wanted to take action for compulsory retirement, and that also having failed, his service was terminated. From the materials on record, the High Court Division correctly held that in the present case it was punishment/dismissal in the garb of termination.

Bangladesh Road Transport Corporation and another vs Md Shahidullah 54 DLR (AD) 124.

Bangladesh Service Rules

Bangladesh Service Rule

Rule 5(57)-

"Traveling allowance"-It varies upon the circumstances of each journey undertaken by an employee.

Government of People's Republic of Bangladesh represented by the Secretary Ministry of Labour and Manpower, Bangladesh Secretariat Dhaka vs Hasan Movies Ltd and others 48 DLR (AD) 40.

Rule 21-

Azad Rahman vs Government of the People's Republic of Bangladesh and others 49 DLR 298.

Rule 24(1)-

Government of Bangladesh and Ors vs Mohammad Faruque 51 DLR (AD) 112.

Rule 72(b)-

The review forum having found the respondent honourably acquitted the Tribunals below rightly held that the respondent is entitled to the arrear pay and allowances.

Secretary, Ministry bf Establishment vs AM Nurunnabi 53 DLR (AD) 41.

Bangladesh Service Rules, 1983

Rule 342(2)-

MA Jalil vs Rupali Bank Ltd and others 54 DLR 566.

Bangladesh Shilpa Bank

Bangladesh Shilpa Bank (Direct Sale of Mortgaged Property) Rules, 1980

Rules 3, 4 and 7(3)-

Sale of Mortgaged Property-irregularity in holding sale-Mere irregularity in holding a sale of mortgaged property by public tender does not divest the Bank of its power to sell the property by private negotiation. Irregularity in sale notice calling for public tender or non-compliance with other Rules in case of sale by private negotiation have no effect on the sale.

Fair Tech Limited vs Bangladesh Shilpa Bank 42 DLR (AD) 216.

Rules 5 and 7(3)-

It cannot be laid down as a general rule that a sale by private negotiation will be invalid because the auction process that began has not been exhausted. When sale by private negotiation takes place and the matter is brought to the Court, the question for consideration should be whether there was any malafide or lack of proper consideration for the transaction.

New Ideal Engineering Works Ltd vs Bangladesh Shilpa Bank and ors. 45 DLR (AD) 138.

Rule 8-

The BSB authority is not empowered either to extend the time for deposit or accept the bid money deposited beyond time.

Paniraj and Company Ltd vs Bangladesh Shilpa Bank, and another 52 DLR 621.

Bangladesh Shilpa Bank Order [PO 129 of 1972)

Article 33 –

The special proceedings under special law (PO No. 129 of 1972) shall proceed independently under the provisions of that special law irrespective of whether there is any other pending proceeding under any other ordinary law instituted earlier or later than the special proceeding-Section 10 CPC shall not be attracted to the two proceedings even though subject-matter and parties may be the same.

The special proceedings under special law (PO No. 129of1972) shall proceed independently under the provisions of that special law irrespective of whether there is any other pending proceeding under any other ordinary law instituted earlier or later than the special proceeding-Section 10 CPC shall not be attracted to the two proceedings even though subject matter and parties may be the same.

Therefore, section 10 CPC cannot have any application in the case of proceedings of different nature. Yet the Appellate Division additionally approved the stay of subsequently-filed Title Suit under the ordinary law on the ground of identity of subject matter not in exercise of powers under section 10 CPC, in our opinion, but in exercise of powers under section 151 CPC, in order that the proceedings under the special law are given an unhindered passage in the interest of justice.

Ahmed Silk Mills Ltd vs Bangladesh Shilpa Bank 42 DLR 140.

Article 33 –

The Shilpa Bank Order under which the Shilpa Bank was established-Made special provisions for quick realisation of loans from the loanees--Otherwise the financial· and economic interests of the country will suffer.

Bangladesh Shilpa Bank vs Bangladesh Hotels Ltd 38 DLR (AD) 70.

Articles 33, 34 and 35-

Bangladesh Shilpa Bank Order, 1972 is a protected legislation under the Constitution. No provision of the Order shall be deemed to be void or unlawful on the ground of inconsistency or repugnancy to any provision of the Constitution. Any of the Articles can be resorted . to by the Bank and may even be combined and it is not incumbent upon the Bank to take recourse to Article 33 at the first instance before proceeding under Article 34.

New Ideal Engineering Works Ltd vs Bangladesh Shilpa Bank 42 DLR (AD) 221.

Articles 33, 35-

The demand made by the respondent No. 2 was not the 'dues' recoverable under Article 35 of PO No. 129of1972.The BSB Order made no provision to determine the dues. It can simply make a claim and such a claim can be enforced under Article 33 of the Order. A claim when admitted or determined under any statutory provision or by a competent court can be termed as dues recoverable under Article 35 of the BSB Order. The certificate officer, without being satisfied, issued the notice for realisation of the amount claimed.,

Manaco Lab Ltd vs General Certificate Officer 42 DLR 159.

Article 34, clause (5)-

When the Shilpa Bank takes over management and administration of any industrial concern under clause (5) of Article 34 no court shall entertain any case as against such taking over or pass any prohibitory injunction order, etc. The above quoted clause (5) clearly means that where the Shilpa Bank has taken over the management and administration, etc or transferred any property in exercise of its power under clause (I) of Article 34, such taking over, transfer shall not be called in question before any Court.

Messrs Moon Light Silk Mills Ltd vs Bangladesh Shilpa Bank 38 DLR 438.

Article 34(1)-

Sale of mortgaged property Power of the Bank to take over management and administration of the borrower's concern and to sell its property are independent and alternative powers to enforce repayment of loan-it may be necessary for practical reasons to take over a concern before putting it to sale but that does not mean that the taking over cannot take place afterwards before completion of sale.

Fairth Limited vs Bangladesh Shilpa Bank 42 DLR (AD) 216.

Bangladesh Shilpa Rin Sangstha Order, 1972

Articles 3 and 34—

Special Law-Remedy against loanee-Sale affected under Article 34 of the BSRS Order cannot be called in question before the winding up court, the provision being one under special law that prevails over the general law.

Uttara Jute Fibres Industries vs Ashraf Jute Mills 44 DLR 452.

Article 33-

Herein the appellant, the builders being one of the parties in the agreement, must be liable for the loan as provided by the clause "any person liable for payment" as in clause (3)-Article 33 (l)-Sangstha entitled to recover the loan money from the appellant.

Dira Dockyard Engr Ltd vs BSRS 39 DLR (AD) 59

Articles 33, 34 and 35-

The trial Judge as well as the High Court Division acted illegally in granting temporary injunction in a matter covered under Article 34 of the BSRS Order which is a special enactment and it will prevail over general law. The temporary injunction order in this case had been passed contrary to the. scheme of the legislation and the purpose of the special law providing for speedy recovery of the dues of the Sangstha.

Bangladesh Shilpa Rain Sangstha vs Azir Uddin Chowdhury 51 DLR (AD)96.

Articles 33, 34 and 35-

There being a legal embargo on granting temporary injunction by the civil Court, the considerations of an arguable case and the BSRS not coming with clean hands are not at all relevant considerations in such a matter.

Bangladesh Shilpa Rain Sangstha vs Azir Uddin Chowdhury 96.

Article 33(1)-

Under the Order the Sangstha has to file an application under Article 33(1) before the District Judge. A Subordinate Judge acting as an Artha Rin Adalat cannot directly entertain such an application.

Azizur Rahman vs BSR Sangstha and ors 55 DLR 107.

Article 34—

There is nothing in Article 34 or in any other provision of the BSRS Order to show that it is only in respect of a claim admitted by the loanee that the authority is entitled to proceed under the relevant provisions of the order for realisation of the dues.

Al-Helal Rice Mills Ltd vs Bangladesh Shilpa Rin Sangstha 51 DLR (AD) 51.

Articles 34 and 35- In an application under Order VII, rule II of the Code the statement in the plaint has to be looked into to determine if the suit is barred by any law. But under Article 34(5) it is not the statement in the plaint but the reliefs claimed in the suit which will determine whether the suit is entertainable or not.

Bangladesh Shilpa Rin Sangstha vs Rahman Textile Mills Ltd 221.

Articles 34 and 35-

The defendant-appellant need not have filed applications under Order VII, rule 11 Code of Civil Procedure. It could have maintained applications under Article 34(5) of Presidents Order No. 128 of972, not for rejection of the plaint, but for not entertaining the suits.

Bangladesh Shilpa Rin Sangstha vs Rahman Textile Mills Ltd and others 51 DLR (AD) 221.

Bangladesh Shipping Corporation (Service) Regulations, 1981

Bangladesh Shipping Corporation (Service) Regulations, 1981

Regulation 12(a)-

Termination of service of confirmed officer of the Corporation is nothing but a departmental administrative action as required to be done by the Corporation itself in accordance with Regulation No. 12(a). There is no omnibus power given to the concerned Ministry of the Government to give any direction or pass any order upon the functions of the Corporation prescribed by Rules and regulated by Regulations of the corporation. Government cannot act beyond the provisions of President's Order No. 10 of 1972 and the prescribed Rules and Regulations.

Bangladesh Shipping Corporation vs Raqibuddin Ahmed 46 DLR 470.

Bangladesh Steel and Engineering Corporation Employees Service Regulations, 1989

Bangladesh Steel and Engineering Corporation Employees Service Regulations, 1989

Regulations 42(8)-

Any procedural law is retrospective in its operation-a subsequent omission by way of amendment of a procedure cannot be of any consequence in respect of the proceeding against the appellant.

Chowdhury Nasimul Baqui vs Bangladesh Steel and Engineering Corporation and others 52 DLR (AD) 125.

BANGLADESH STEEL AND ENGINEERING CORPORATION EMPLOYEES SERVICE REGULATIONS, 1989

Citation: 52 DLR (AD) 125.

Case Year: 1989

Subject: BANGLADESH STEEL AND ENGINEERING CORPORATION EMPLOYEES SERVICE

Delivery Date: 2018-01-30

Bangladesh Steel and Engineering Corporation Employees Service Regulations, 1989

Regulations 42(8)-

Any procedural law is retrospective in its operation-a subsequent omission by way of amendment of a procedure cannot be of any consequence in respect of the proceeding against the appellant.

Chowdhury Nasimul Baqui vs Bangladesh Steel and Engineering Corporation and others 52 DLR (AD) 125.

Bangladesh (Taking Over of Control and Management of Industrial and Commercial Concerns) Order, 1972

The former Order applies when the "owners and top management" have left Bangladesh and are not available. In the second situation under Acting President's Order I of 1972 the availability is not simpliciter, it must be an availability "to control and manage" the concern. If a concern is taken over under the Acting President's Order dated 26-12- 71, all that the owners and top management have to prove to the satisfaction of the authorities is that on the date of Notification they did not leave Bangladesh and are available. But when a concern is taken over for management under Acting President's Order No. 1 of 1972 under the second situation, the owners, directors, etc. have to show that they were available on the date of Notification "to control and manage" their concern. The scope of application of Acting President's Order No. lM-35/71-13 dated 26-12- 71 and the second situation of APO No. I of 1972 are not co-extensive and interchangeable, The plea of mistake in invoking one provision for the other cannot be accepted.

Bangladesh vs Dhaka Steel Works Ltd & others 45 DLR (AD) 69.

BANGLADESH (TAKING OVER OF CONTROL AND MANAGEMENT OF INDUSTRIAL AND COMMERCIAL CONCERNS) ORDER, 1972

Citation: 45 DLR (AD) 69.

Case Year: 1972

Subject: BANGLADESH (TAKING OVER OF CONTROL AND MANAGEMENT OF INDUSTRIAL AND COMMERCIAL CONCERNS)

Delivery Date: 2018-01-27

Bangladesh vs Dhaka Steel Works Ltd & others 45 DLR (AD) 69.

Bangladesh Telecommunication Act, 2001

Section 3-

The Act of 2001 is applicable in respect of all the matters as mentioned in section 3 of the Act and the BTRC is the sole and exclusive authority to grant license necessary for the purpose in the manner as provided in the Act and no separate license from the Ministry of Information would be necessary for the matters mentioned in section 3.

Ekushey Television Ltd and another vs Bangladesh 56 DLR 91.

Sections 33 and 34-

The functions of the Ministry and that of the Government have been laid down in sections 33 and 34 of the Act and in none of these two sections any reference has been made reserving the power either by the Ministry or the Government as to issue licence but, in fact, these two sections have reserved the right of the Ministry and the Government to take policy decision in telecommunication sector and to encourage the development of the sector in Bangladesh both nationally and internally.

ETV Ltd and another vs Bangladesh and others 56 DLR 91.

Sections 89, 90 & 91-

Mere reading of the provisions of the Act of 2001 show that the same have been .made to protect the interest and the right of the persons who had an existing vested legal right on the basis of a validly obtained licence, certificate or permit or licensing agreement before the Act of 2001 came into operation.

ETV Ltd and another vs Bangladesh and ors 56 DLR 91.

Bangladesh Transfer of Immovable Property (Temporary Provisions) Order, 1972

Article 6 –

Mere non-impleading of the Government in the suit does not non-suit the plaintiffs automatically.

Abdul Quayuam Khan vs Abu Yusuf Mridha 51 DLR 386.

Article 6-

Where in the suit no public interest is involved, Government is not necessary party. Moreover, plea of non-joinder of necessary party need be raised at the earliest opportunity.

Abdul Quayum Khan and others vs Md Abu Yousuf Mirdha and others 52 DLR (AD) 48.

Bangladesh (Vesting of Property and Assets) Order, 1972

Bangladesh (Vesting of Property and Assets) Order [PO 29 of 1972]

Article 2(1)-

Under Article 2(1) of PO 29 of 1972 all properties and assets which formerly vested in the Government of Pakistan now from 26-3-1971 vest in the Government of Bangladesh.

Sabitri Barai vs Asstt Custodian 39 DLR 172.

-Effect of Act XLV of 1974 (amended by Ordinances XCII and XCIII) is that all the enemy property now vests in the Government of Bangladesh.

Sabitri Barai vs Asstt Custodian 39 DLR 172.

Rights in respect of enemy property having now vested in the Government of Bangladesh (read with the repeal of Ordinance 1 of 1969) the office of Deputy Custodian and Asstt Custodian of Enemy Property stood abolished.

Sabitri Barai vs Asstt Custodian 39 DLR 172.

Property vested in the custodian has been vested in Government by President's Order No 29 of 72 replacing the Custodian.

Rahima Akhter vs Asim Kumar Bose 40 DLR 23.

Bangladesh Water and Power Development Boards Order, 1972 & Bangladesh Water Development Board (Employee) Service Rules, 1982

Bangladesh Water and Power Development Boards Order, 1972

Article 4(3)-

The direction that the Government may give from time to time to either the Water Board or the Power· Board in the discharge of their functions will be in the nature of guidance which will be related broadly to policies and procedures.

Chairman, Bangladesh Water Development Board and another vs Shamsul Huq and Co Ltd and others 51 DLR (AD)l69.

Bangladesh Water Development Board (Employee) Service Rules, 1982

Rule 13(2)-

The petitioner having been promoted to the post of Section Officer on the basis of decision taken by the Selection Committee and serving as such, the taking away of such right without show cause notice and assigning of reasons, is illegal.

MA Bari vs Chairman, Bangladesh Water Development Board (BWDB) and others 50 DLR 390.

Rule 139(1)(f)-

Report of an officer holding inquiry is to be treated as a judicial order and reversal of such decision is permissible by the punishing authority, provided the reasons are given.

Mainul Haque (Md) vs Secretary, Ministry of Water Resources, Government of the People's Republic of Bangladesh, Bangladesh Secretariat, Dhaka and others 51 DLR 136.

BANGLADESH WATER AND POWER DEVELOPMENT BOARDS ORDER, 1972 & BANGLADESH WATER DEVELOPMENT BOARD (EMPLOYEE) SERVICE RULES, 1982

Citation: 51 DLR (AD)l69, 50 DLR 390, 51 DLR 136.

Case Year: 1982

Subject: BANGLADESH WATER AND POWER DEVELOPMENT BOARDS ORDER, 1972 & BANGLADESH WATER DEVELOPMENT BOARD (EMPLOYEE)

Delivery Date: 2018-01-30

Bangladesh Water and Power Development Boards Order, 1972

Article 4(3)-

Chairman, Bangladesh Water Development Board and another vs Shamsul Huq and Co Ltd and others 51 DLR (AD)l69.

Bangladesh Water Development Board (Employee) Service Rules, 1982

Rule 13(2)-

MA Bari vs Chairman, Bangladesh Water Development Board (BWDB) and others 50 DLR 390.

Rule 139(1)(f)-

Report of an officer holding inquiry is to be treated as a judicial order and reversal of such decision is permissible by the punishing authority, provided the reasons are given.

Mainul Haque (Md) vs Secretary, Ministry of Water Resources, Government of the People's Republic of Bangladesh, Bangladesh Secretariat, Dhaka and others 51 DLR 136.

Bank Company Act, 1991

Bank Company Act, 1991

[XIV of 1991]

Section 2(ga) (ga)-

Defaulting borrowers themselves form a separate and distinct class and legislature can make stringent law against them and such law is not violative of the fundamental rights.

Anwar Karim and others vs Bangladesh Bank and others 52 DLR 1.

Section 15 Ka Ka-

Akhteruzzaman Chowdhury vs Hamidul Huq, MD, UCBL and another (Statutory) 56 DLR 73.

Section 17-

ASF Rahman and others vs Bangladesh Bank and others 52 DLR (AD) 61.

Sections 17, 45 and 49-

The Bank Companies Act clearly invests Bangladesh Bank with a strong regulatory power over the functioning and business of banking companies.

ASF Rahman and others vs Bangladesh Bank and others 52 DLR (AD) 61.

Section 17(1)-

Yaqub Mohammad and another vs Bangladesh Bank and others 52 DLR (AD) 159.

Section 27(Ka)-

Anwar Karim and others vs Bangladesh Bank and others 52 DLR 1.

Sections 29 and 45-

KM Zakir Hossain vs Bangladesh Bank and others 52 DLR 577.

Section 37-

Paul and Co vs Bangladesh Bank 45 DLR 8.

Section 45—

When a bank claims interest in excess of what is permitted by circular/direction of the Bangladesh Bank, the Court can always give relief to the aggrieved party.

Uttara Bank Ltd vs Aysha Siddiqua and others 56 DLR 253.

Section 45(2)-

Under section 45(2) of the Bank Companies Act the Bangladesh Bank has discretion to modify its own order or circular on a representation made to it or on its own motion.

KM Zakir Hossain vs Bangladesh Bank and others 52 DLR 577.

Section 45(1)(d)-

The Bangladesh Bank has power to give directions under the Bank Companies Act to secure proper management of any bank company generally.

KM Zakir Hossain vs Bangladesh Bank and others 52 DLR 577.

Section 46-

Abdur Rahim Chowdhury vs Bangladesh Bank and others 52 DLR (AD) 71.

Section 46-

Bangladesh Bank and others vs Zafar Ahmed Chowdhury and another 53 DLR (AD) 70.

Section 46-

When Bangladesh Bank was fully aware of the purport of the order passed by this Division they ought not to have taken recourse to section 46 of the Act.

Bangladesh Bank and others vs Zafar Ahmed Chowdhury and another 53 DLR (AD) 70.

Sections 46 and 47-

Abdur Rahim Chowdhury vs Bangladesh Bank, Dhaka and others 51 DLR 231.

Section 103-

Arab Bangladesh Bank Ltd vs Ziauddin and others 52 DLR 36.

Section 103-

Ziauddin Ahmed and others vs Arab Bangladesh Bank and others 53 DLR (AD) 107.

Bank Staff Regulation

-Any disciplinary action against an employee has to be in accordance with Rules 11 and 12 of the Bank Staff Regulation so far as the examination and cross-examination and deposition of the witnesses is concerned.

Bangladesh Bank vs Tarique Ahmed 37 DLR 143.

-The action of the petitioner (defendant No. 2) is found to be irregular and in violation of the principles of natural justice as his finding is not based upon any reasonably deduced conclusion that the employee actually committed the offence and deserves the punishment of dismissal.

Bangladesh Bank vs Tarique Ahmed 37 DLR 143.

Banker's Books Evidence Act, 1891

Banker's Books Evidence Act, 1891

[XVIII of 1891]

Section 5-

No officer of a bank shall in ariy legal proceeding to which the bank is a party be compelled to produce any Banker's Book or to appear as witness to prove the matters, transactions and accounts therein recorded without any order of the court. The Bank enjoys special privileges not to disclose information relating to its client.

Zeenat Mosharraf vs Md Sirajul Huq, District Anti-Corruption Officer and others 55 DLR 457.

Sections 5 and 6-

It is true that power to inspect document on permission is available in the law but such inspection must be in relation to any specific offence but no order for inspection ought to have been passed on any vague, or indefinite assumption.

Islami Bank Bangladesh Ltd vs District Anti-Corruption Officer, and another 55 DLR 233.

Section 6-

Petitioner cannot take shelter under the garb of secrecy of bank account when he is required under the law to maintain with the bank transaction of his share dealings and to furnish the same to the Enquiry Committee formed under the Law.

Khurshid Alam vs Securities and Exchange Commission and others 51 DLR 534.

Banking Companies Ordinance, 1962

Banking Companies Ordinance, 1962

[LVII of 1962]

Section 2-

In the present case concerning adjustment of loan by share certificates, the provisions of Banking Companies Ordinance shall be read construed in addition to sec 171 of the Contract Act. From the provision of the Sale of Goods Act it appears that the shares of a company are also goods and as such moveable property. Money is species of goods over which lien may be exercised. Where a banker has advanced money to another, he has a lien on all securities which come within his hand for the amount of his general balance unless there is an express contract to the contrary.

Sonali Bank vs Bengal Liner Ltd 42 DLR 487.

Sections 2 and 41-

Bangladesh Bank has not been invested with any power for removal of a Director of a Banking Company.

Khondker Mahtabuddin Ahmed vs Bangladesh Bank and others. 47 DLR 589.

Sections 2, 60-62-

Auction sale of property of company-The Company is in liquidation long afterwards-Question of setting aside the saleProvisions of the Banking Companies Ordinance when read with those of the Companies Act and the Public Demands Recovery Act, it appears that the provisions of the Banking Companies Act shall be effective in addition to and not in derogation to the Companies Act or any other law for the time being in force excepting the provisions which are specifically made in the Ordinance. In view of the fact that the law under which the auction sale took place has made provisions for the aggrieved person to seek the relief of setting aside the auction and the plaintiff did not avail of the forum for appropriate remedy and the auction is still subsisting in the eye of law, the same cannot be set aside now in the present proceeding under the Banking Companies Ordinance.

Official Liquidator vs Jahura Khatun 43 DLR 558.

Section 24-

Deposit of share certificate to adjust loan-A company is debarred from giving loan to its shareholder or director on the security of share certificates sold to him. This section does not, however, in any manner prohibit him to deposit his share certificates with. an authority to sell it to others in order to adjust the loan which was taken by him earlier.

Sonali Bank vs Bengal Liner Ltd 42 DLR 487.

Section 41-

A company's Cash Credit Account with a bank-Power of Bangladesh Bank to give directions-The direction contemplated in the above section can be of general character touching policy guidelines and not otherwise. Direction given in the instant case does not mention any public interest, it rather relates to the conduct of a bank with respect to a particular loanee only to secure the interest of a respondent. Such direction, particularly when the respondent's claim is sub-judice before a civil Court, was not proper, the same being beyond the purview of the section.

Delta Jute Mills Ltd vs Sonali Bank 43 DLR 483,

Sections 60 and 61-

The Banking Companies Ordinance, 1962 made special provisions for banking companies when they are in liquidation and empowered the High Court Division exclusive jurisdiction to decide any claim by or against a banking company. Though this Ordinance is in addition and not in derogation of the Companies Act or any other law for the time being in force, section 60 of the Banking Companies Ordinance by its non obstante clause made provision to prevail over the Companies Act, Civil Procedure Code or any other law for the time being in force.

Bazlul Ghant vs Pioneer Bank Ltd Comilla 42 DLR 480.

Section 73-

Bank's property-Articles of Association-Scheme of Arrangement-Director -in-charge's power-Whether lease-deeds executed two weeks after expiration of the Scheme of Arrangement are ultra vires the power of the Director-in-charge.

NL Sinha, Director-in-charge, acted under the Scheme of arrangement from which he derived his power and authority. Articles of Association were subject to the Scheme of Arrangement which required him to seek prior approval of the Board of Directors for any transfer of the Bank's property and this power and authority did not extend beyond the period of the Scheme of Arrangement. The lease-deeds were executed two weeks after the expiration of the terms of the Scheme of Arrangement and so ultra vires his power. The Bank is, therefore, not bound by the transfer.

Harun Moten vs Mahaluxmi Bank Ltd 41 DLR (AD) 8.

Special procedure for computing the period of limitation for a suit filed by a Banking Company facing liquidation.

It appears, under the general law of limitation, namely Article 95 of the Limitation Act, the suit was filed within the period of limitation of 3 years not only from the date of knowledge as claimed but also from the date of the decree. But the application for addition of party was filed on March 3, 1966, but for any special law of limitation the application was barred. The suit is, however, governed by a special provision as to limitation, namely, section 73 of the Banking Companies Ordinance, 1962 which came into force from July 1962. This section provides for a special procedure for computing the period of limitation for a suit on an application filed by a Banking Company facing liquidation.

Harun Moten vs Mahaluxmi Bank Ltd and ors 41 DLR (AD) 8.

Whether right to sue which was extinguished long before the new change of law subsequently can revive that right that was destroyed.

In pursuance of this provision of law the trial Court excluded the period from 25-8-1959 when the petition for winding up the bank was presented, to 6-3-1966, when the application for addition of party to the suit was made in computing the period of limitation. Mr Chowdhury has expressed doubt whether section 73 is applicable to an application for impleading a party. But the language of section 73 is wide enough to include any application by a Banking Company under liquidation. Main contention is that the plaintiffs right to sue defendant No. 3 was barred by the ordinary law and as such this right was extinguished before defendant No. 3 was impleaded. This right which was extinguished could not be revived by subsequent change of law providing for a longer period of limitation. In the instant case section 73 of the Banking Companies Ordinance as well as the Ordinance itself came into force in July;. 1962 when the plaintiffs right to sue under the ordinary law was still alive and was not extinguished. There is, therefore, no question of revival of a right destroyed.

Harun Moten vs Mahaluxmi Bank Ltd 41 DLR (AD) 8.

-Legislative intent behind the special enactment to enable a Banking Company in liquidation to file a suit by overcoming the bar of limitation.

Legislative intent behind this special enactment appears to enable a Banking Company in liquidation to file a suit or make an application to protect its interest by overcoming any bar of limitation under the ordinary law and for that purpose this law excluded the period from the presentation of an application for the winding up to the institution of the suit in computing the period of limitation. This provision being a special provision of law must take effect notwithstanding anything contained in any other law. If a banking company can take benefit of this provision for filing a suit it is quite understandable that this benefit will be available to make an application for addition of parties to the suit. We, therefore, find that the question of limitation has been correctly decided in this case by the High Court Division.

Harun Moten vs Mahaluxmi Bank Ltd 41 DLR (AD) 8.

Bankruptcy Act, 1997 & Bankruptcy Rules, 1997

Bankruptcy Act, 1997

[X of 1997]

Sections 5(1) amd 110-

When a Tribunal commits· an error of law in deciding an issue raised by it, it acts beyond its jurisdiction and such decision of the Tribunal can be quashed under writ jurisdiction.

Abdur Rashid Chowdhury vs Additional District Judge and others 56 DLR 573.

Section 28-

The Bankruptcy suits are not barred by the principles of res-judicata due to passing of decree by Artha Rin Adalat in favour of the plaintiff of the Bankruptcy suits and against the defendants of those suits.

Shamshad Asif vs Additional District Judge and others 52 DLR 138.

Section 28-

If any application is filed before the Bankruptcy Court alleging that condition precedent in filing the suit has not been fulfilled the Bankruptcy Court has been authorised and is bound to look into that objection and decide that objection strictly in accordance with law.

Rezaul Karim Chowdhury (Md) and ors vs Court of District Judge and Bankruptcy Court and ors 54 DLR 122.

Section 28(1)-

The Bankruptcy Court shall have to wait for one year from the date of issuance of a formal demand for a Bank debt in excess of Taka 5.00 lac before passing either an order of dismissal of the plaint or order of adjudication.

Shamshad Asif vs Additional District Judge and others 52 DLR 138.

Sections 30 and 33—

There is no bar in filing a Bankruptcy case by the creditor against a debtor against whom a case is pending in respect of the self-same debt.

Shamshad Asif vs Additional District Judge and others 52 DLR 138.

Bankruptcy Rules, 1997

Rules 9 and 33—

Rezaul Karim Chowdhury (Md) and ors vs Court of District Judge and Bankruptcy Court and ors 54 DLR 122.

Bar Council Canons of Professional Conduct and Etiquette

Chapter II, Clause 4-

Considering the fact that no harm was caused to the complainant and that the two other complaints .could not be sustained, the punishment awarded by the Tribunal was too severe.

Bangladesh Bar Council vs Khawja Abdul Gani and another 50 DLR (AD) 18.

Clause 4—

In accepting legal fees some considerations are to be made by the advocates themselves with regard to the time, labour and intricacies of the case. These are mere guidelines having no binding force. The High Court Division rightly held that the amount charged as legal fees is not disproportionate as there is no fixed standard of fees of advocates.

Bangladesh Bar Council vs Khawja Abdul Gani and another 50 DLR (AD) 18.

Clause 4-

The matter having been compromised between the parties who are close relations the punishment of reprimand is sufficient in the facts and circumstances of the present case, although an offence of this nature is not compoundable.

Bangladesh Bar Council vs Khawja Abdul Gani and another 50 DLR (AD) 18.

BCS Seniority Rules, 1983

Rules 4, 5 and 6-

These Rules clearly indicate that seniority in the case of ad hoc appointees on regularisation was left to be determined in future by specific rules ....

Bangladesh vs Md Azizur Rahman 46 DLR (AD) 19.

Bengal Excise Act, 1909 & Bengal Land Revenue Sales Act, 1859

Bengal Excise Act, 1909

Section 2(5)-

Collector-Meaning of Collector is chief in charge of Revenue Administration-Previous system in which the Collector was in charge of administration of excise under the Bengal Excise Act (V of 1909) had discontinued after partition in 1947- "Collector" was later substituted by "Deputy Controller of Narcotics and Liquor" who was responsible for administration of Narcotics and Liquor with power to issue, suspend and cancel licence.

Gopal Chandra Shaha vs Deputy Commissioner 41 DLR (AD) 60.

Bengal Land Revenue Sales Act, 1859

Sections 2 and 33-

Sale can be set aside if requirements under section 33 are not complied which it is for the plaintiff to prove. A sale is not without jurisdiction merely. because no notice of sale by registered post was issued to the recorded proprietor.

Md Nurul Islam vs Abdul Malek 38 DLR (ADJ 115.

Sections 6 and 33-

Sale under the Act can be set aside when it is further proved that the party affected has suffered substantial injury, sale being held without issuing notice of sale by registered post.

Md Nurul Islam vs Abdul Malek 38 DLR (AD) 115.

Section 37-

Purchaser at a revenue sales of a revenue-paying estate-Right to annul encumbrance.

Sale of a revenue paying estate for the recovery of arrear of revenue is governed by the Bengal Land Revenue Sale Act (XI of 1859) and section 3 7 thereof provides the right of the purchaser of such an estate including the right to annul all encumbrances. Section 37 is, therefore, quoted for appreciation of the consequences of a revenue sale.

Shafiullah vs Sultan Ahmed Mir 37 DLR (AD) 193.

Bengal Motor Vehicles Rules, 1940 - Bengal Revenue Commission Regulation, 1829

Rule 114(d)-

Environmental hazards - Directions to ensure air and atmosphere free from pollution - Urgent preventive measures to halt sagging environment pollution and degradation of Dhaka city, one of the worst in the world, due to audible vehicular sounds and emission of hazardous black smoke from faulty and arrogant motor vehicles is indeed, overdue. Hence, in the prevailing situation, ad-interim directions as sought for and necessary are given.

Dr Mohiuddin Farooque and another vs Government of Bangladesh and others 55 DLR 613.

Bengal Patni Taluks Regulation (Bengal Regulation)

[VIII of 1819]

Section 2-

A talukdar holds a tenure under a Zamindar, a Darpatnidar under a talukdar and so on. The same goes for a howladar and a Nim howladar and so on. The provision of Bengal Tenancy Act relating to tenures are, prima facie, applicable to Patni Laws. Bengal Tenancy Act cannot vary the relative rights of Zamindars and Patni talukdars as established by Regulation VIII of 1819 but if there are provisions in the Bengal Tenancy Act which are in the nature of supplementing the relationship without being in conflict with the Patni Laws, the provisions of Bengal Tenancy Act will apply in respect of Patni tenures.

Bangladesh vs Tobarak Ali Mia 43 DLR (AD) 130.

Section 14-

Lands lost by diluvion- Limitation for talukdar's suit for setting aside auction sale-A plaintiff alleging that the lands were lost and no rent was legally due for the period so lost is not really suing the Zamindar for settling the balance due to him. He is alleging that the very relationship of landlord and tenant was in a state of suspended animation for some time. It is actually a suit for determining a cessation and resumption of landlord-tenant relationship not to be governed by section 14 of the Patni Regulation under which the relationship is continuous. The plaintiffs need not file, in such a position, a suit to set aside the patni sale within the period of limitation laid down in Article 12(d) of the Limitation Act.

Bangladesh vs Tobarak Ali Mia 43 DLR (AD) 130.

Bengal Revenue Commission Regulation, 1829

Section 2(1)-

Creation and naming of a Division on the strength of section 2(1) does not offend any of the fundamental rights guaranteed under the Constitution.

Mizan Howlader vs Bangladesh, represented by the Secretary, Ministry of Establishment, Government of the People's Republic of Bangladesh and another 48 DLR 91.

BENGAL MOTOR VEHICLES RULES, 1940 - BENGAL REVENUE COMMISSION REGULATION, 1829

Citation: 55 DLR 613, 43 DLR (AD) 130, 43 DLR (AD) 130, 48 DLR 91.

Case Year: 1940

Subject: BENGAL MOTOR VEHICLES, BENGAL REVENUE COMMISSION

Delivery Date: 2018-01-30

Rule 114(d)-

Dr Mohiuddin Farooque and another vs Government of Bangladesh and others 55 DLR 613.

Bengal Patni Taluks Regulation (Bengal Regulation)

[VIII of 1819]

Section 2-

Bangladesh vs Tobarak Ali Mia 43 DLR (AD) 130.

Section 14-

Bangladesh vs Tobarak Ali Mia 43 DLR (AD) 130.

Bengal Revenue Commission Regulation, 1829

Section 2(1)-

Creation and naming of a Division on the strength of section 2(1) does not offend any of the fundamental rights guaranteed under the Constitution.

Mizan Howlader vs Bangladesh, represented by the Secretary, Ministry of Establishment, Government of the People's Republic of Bangladesh and another 48 DLR 91.

Bengal Tenancy Act, 1885

Bengal Tenancy Act, 188

Section 3(17)-

'Bargader', 'adhiar' not a tenant-can however become a tenant.

As to the position of a bargader, he has been excluded from the definition of a tenant under section 3(17) of the Bengal Tenancy Act, 1885. This definition has remained unaltered althrough. Under this section the bargader or adhiar is not a tenant, but he acquires the status of a tenant only in two circumstances: if he is admitted as a tenant by the landlord in any document executed by him or executed in his favour and accepted by him, or if he has been held by a Civil Court to be a tenant.

Shafiullah vs Sultan Ahmed Mir 37 DLR 193.

Section 3(17)-

For the purpose of creating lease of agricultural lands a written document is not necessary.

Hazrat Ali (Md) vs Government of Bangladesh and ors 47 DLR 246.

Sections 5(1), 52, 61, 86A and 195(e)-

Applicability of the provision of Bengal Tenancy Act in respect of Patni tenures-A talukdar holds a tenure under a Zamindar, a Darpatnidar under a talukdar and so on. The same goes for a howladar and a Nim howladar and so on. The provision of Bengal Tenancy Act relating to tenures are, prima facie, applicable to Patni Laws. Bengal Tenancy Act cannot vary the relative rights of Zamindars and Patni talukdars as established by Regulation VIII of 1819 but if there are provisions in the Bengal Tenancy Act which are in the nature of supplementing the relationship without being in conflict with the Patni Laws, the provisions of Bengal Tenancy Act will apply in respect of Patni tenures.

Bangladesh vs Tobarak Ali Mia 43 DLR( AD) 130.

Section 22-

Explanation-A person having a right of occupancy does not lose it when jointly interested in the land as proprietor. But the 'Explanation' to this section is of fundamental importance in that it operates as an exception to the general principle of merger in sub-sections (1) and (2). It provides that if an occupancy raiyat acquires a share in the superior interest, that is, an estate or a permanent tenure, he shall not lose the raiyati interest. The doctrine of merger, under which the occupancy right disappears, is based on the commonsense principle that a person cannot be, at the same time, both landlord and tenant of the same premises.

Shafiullah vs Sultan Ahmed Mir 37 DLR 193.

Section 22(1)-

Complete merger is effected when the entire interest of the proprietor/ permanent tenure-holder and entire raiyati interest is united in the same person.

Shafiullah vs Sultan Ahmed Mir 37 DLR 193.

Section 22(1)(2)-

In case of a merger, the landlord holds only the superior interest and can possess the land as a tenant but he has to pay rent for the land in his khas possession "for use and occupation of the same."

As provided in the Explanation, a person holding occupancy right in a land does not lose it by becoming a joint proprietor in the land.

Shafiullah vs Sultan Ahmed Mir 37 DLR 193.

Section 22(2)-

Provides for partial merger

Sub-section (2) provides for partial merger which takes place if a co-sharer landlord acquires the raiyati interest under him and his other co-sharer landlords. As to sub-section (3), it prohibits an ijaradar or revenue farmer from acquiring any occupancy right.

Shafiullah vs Sultan Ahmed Mir 37 DLR 193.

Section 26(c)-

Surrender by the tenant in favour of the superior landlord of the land in possession of the tenant not being a transfer in the true sense of the term, such surrender does not require registration and such surrender can be made by word of mouth.

Since this is not transfer in the true sense of the term and since this is an agricultural land and since this is merely on Istafa to the landlord, so the registered instrument is not necessary in case of such surrender. In the instant case simply oral surrender is enough.

Mst Seratannessa vs Saimon Bewa 37 DLR 217.

Section 26F-

Pre-emption under section 26F of the Bengal Tenancy Act (VIII of 1885) - Whether the same can be allowed in favour of the pre-emptor applicant who admittedly owns more than 100 bighas of land exceeding the land ceiling prescribed in PO No. 98 of 1972-The question of land holding limitation upto 100 bighas of land does not arise as the Munsifs order was passed in 1967 when there was no law limiting land holding to 100 bighas. Appeal dismissed.

Azizur Rahman vs Bhayetullah 40 DLR (AD) 224.

Sections 86-

In order to constitute a valid surrender of a part of a holding there must be an arrangement between all the ttenants and all the landlords to that effect.

Mansur Ali and others vs Bangshidhari Thakur and others 46 DLR 645.

Section 87-

Abandonment-The appellant shall have no case if he relies on the plaintiff's admission of the abandonment of the suit land in the last part of Poush, 1360 BS.

Afroz Rashid vs Fazlul Karim 40 DLR (AD) 79.

Section 87-

Landlord is entitled to treat the land in possession of the tenant as abandoned when the tenant ceased to pay rent thereof and which by service of notice under section 87 BT Act he can enter into land and take possession. Tenant has a right of recovery of the land by filing Bengal Waqf Act-Board of Intermediate and Secondary Education, Dhaka (Managing Committee of the Recognised Non-Government Secondary Schools) Regulations-Board of Intermediate and Secondary Education, Jessore (Managing Committee of Recognised Non-Government Secondary School) Regulation a suit within 2 years from the date of the notice.

Malekha Khatun vs Md Abul Kashem 37 DLR (AD) 164.

Section 103B(5)-

Presumption of correctness of record of rights. In 30 DLR (AD) 81 it is held that according to section 103B(5) of the Bengal Tenancy Act every entry in a record of right finally published shall be evidence of the matter referred to in such entry and shall be presumed to be until it is proved to be incorrect.

Abdul Hajez vs Lal Meah 38 DLR 327.

Section 167-

Service of notice when not proved by production of notice would not be fatal.

Mere non-production of the notice under section 167 or paper connected with the service of such notice by itself would not be fatal for the plaintiff's case, if it could be proved otherwise that there was service of such notice and the encumbrance was, in fact annulled.

Md Shahadat Hossain vs Kohiladdi Shaikh 37 DLR 126.

Section 174-

Court to decide as to whether the said Luthfar Rahman was the caretaker of the petitioner because the nature of the auction-purchase would depend upon the determination of this question.

Sourja Bala Devi vs Habibullah Sheikh 41 DLR 463.

Bengal Waqf Act, 1934 - Board of Land Administration Act, 1981

Bengal Waqf Act, 1934

[XIII of 1934]

Section 46A-

Section 46A was an implied bar to the institution of suits. Section 50 of the Waqfs Ordinance 1962 proceeds differently. Any person aggrieved by the order of the Administrator within whose jurisdiction the particular property is situated may file a petition seeking a declaration of waqf property.

SSM Osman Ghani vs Bangladesh 39 DLR 451.

Section 46A-

The Waqfs Ordinance, 1962 provides an adequate, sufficient and comprehensive forum and procedure to decide the question if it is waqf property.

SSM Osman Ghani vs Bangladesh 39 DLR 451.

Board of Intermediate and Secondary Education, Dhaka (Managing Committee of the Recognised Non-Government Secondary Schools) Regulations, 1977

Regulations 2(a) and 26-

Petitioner's prayer for extension of service having not been recommended by the Managing Committee under regulation 27(2), the Board has no legal authority to grant extension of his service.

Fazlur Rahman (Md) vs Government of the People's Republic of Bangladesh and others 49 DLR (AD) 92.

Regulations 8 and 22-

Regulation 8 provides for constitution of an ad-hoc committee to meet a situation where the next Managing Committee of the School was not reconstituted before the expiry of the term of a Managing Committee. Appointment of a Special Committee for one year by the Board is not contemplated by Regulation 22 which may be used only in a matter not covered by the Regulations.

Azizul Haque vs Bangladesh and others 45 DLR 566.

Board of Intermediate and Secondary Education, Jessore (Managing Committee of Recognised Non-Government Secondary School) Regulation, 1977

Regulations 7 and 9 (20) and (22)-

If there is any dispute about the election of any member from a particular category, the remedy is provided in Sub-Regulations 20 and 22 of Regulation 9 and under no circumstances, the entire Committee can be dissolved.

Molla Habibur Rahman vs Board of Intermediate and Secondary Education, Jessore and ors 52 DLR 115.

Board of Land Administration Act [XIII of 1981]

Section 4-lnterpretation of Statute - Absence of legislative intention investing the Government with the authority of a residuary power-No appellate or revisional power is available to the Government.

Ashfaque Hossain vs Bangladesh 41 DLR 364.

Building Construction Act, 1952

Section 3-

The petitioner should have gone to the respondents in compliance with the impugned memo to ventilate his grievance and to establish his claim that he has not violated any rules. It is not open to the petitioner to challenge the impugned memo as his right to the property or any legal right or any fundamental right has not been infringed.

Abul Kashem (Md) vs Chairman, RAJUK and others 52 DLR 488.

Section 3-

The whereabouts of the owner being well known issuance of notice to the owner is absolutely the correct procedure and is a constructive notice to the occupier.

Meridian International (Pvt) Ltd and another vs Rajdhani Unnayan Kartripakha (RAJUK) and others 53 DLR 35.

Section 3-

RAJUK cannot cancel the sanction for building construction without giving notice that due to mistake and misrepresentation the building plans were sanctioned and permission was given for construction.

Rajdhani Unnayan Kartripakshya (RAJUK) and others vs Water Front Apartment Ltd and ors 56 DLR (AD) 16.

Sections 3, 9 and 12-

Contravening provision for construction-When punishment not sustainable: Non-conformity with a sanctioned plan is visited with punishment of cancellation of the plan. There is nothing on record to show that the authority had cancelled the permission accorded to the plan. Papers filed in the case show that the prosecution was set in motion against the petitioner for her making construction not in conformity with the sanctioned plan and not for making any construction even after cancellation of the plan. The petitioner was not therefore guilty for making construction without sanction.

Pariman Hashi Grosser vs Authorised Officer CDA 42 DLR 462.

Section 3B-

The order for removal of the construction first asked by the respondent No. 3 himself and then issued, in the name of the appellate authority, was not passed according to the provisions of section 3B of the Act.

A Rouf Chowdhury and another vs Bangladesh and others 52 DLR 461.

Section 3B-

RAJUK was never given any power to remove and/or demolish any construction on the ground of height under the provisions of section 38 of the Act.

A Rouf Chowdhury and another vs Bangladesh and others 52 DLR 461.

Sections 3B and 6—

Construction without sanction-Eviction of tenant. The Authorised Officer is empowered to get vacated any building constructed, by the owner without sanction. The submissions that since the petitioner was a tenant of the owner only the owner could evict him under the Premises Rent Control Ordinance after giving notice under section I 06 of Transfer of Property Act is not tenable. This could be true if the building was constructed without violating the Building Construction Act.

Anwar Ali (Md) vs RAJUK 44 DLR 515.

Sections 3B and 7-

Construction of building without sanction- Order for removal and question of natural justice-To a person like the petitioner who constructed a building without sanction opportunity has been given to obtain sanction on payment often times of the prescribed fee and fine imposed. Had the petitioner availed such opportunity to protect his construction by submitting an application for sanction it could be said that he was prejudiced for not allowing him an opportunity to be heard on question of saving his construction from demolition. In the absence of pendency of any application for sanction, it cannot be said that there was failure of the principle of natural justice in his case.

Habibullah Chowdhury vs RAJUK 43 DLR 187.

Sections 3B and 9-

In regulating orderly development of the Metropolitan City of Dhaka, RAJUK has got no right to transgress upon the rights of the citizens.

A Rouf Chy and another vs Bangladesh and others 52 DLR 461.

Section 3B(l)(b),(3)(5)-

No order of demolition can be passed under sub-section (5) of section 3B of the said Act unless a finding is given that the disputed construction answers the description contained in clause (a) or (b) or (c) of sub-section (5). This action was nothing but riding roughshod over the procedural safeguards guaranteed to the owners and occupiers.

The impugned order of the Authorised Officer lacks any legal basis and cannot be sustained.

Abdus Sattar (Md) vs Bangladesh and others 48 DLR (AD) 180.

Section 9-

The decision of the committee also does not show what directions were given to the petitioners which they were bound in law to comply with but did not comply. In the absence of any such finding, just by saying for repeated non-compliance with the notice, the Committee was not empowered to cancel the sanction.

A Rouf Chowdhury and another vs Bangladesh and others 52 DLR 461.

Section 9-

RAJUK cannot permit its decision to be influenced by the dictates of others, how big they may be, as this would tantamount to abdication and surrender of its discretion.

A Rouf Chowdhury and another vs Bangladesh and others 52 DLR 461.

Section 12(3)-

Provision of section 12(3) cannot be of retrospective effect, it being a penal provision.

Pariman Hashi Grosser vs Authorised Officer CDA 42 DLR 462.

BUILDING CONSTRUCTION ACT, 1952

Citation: 52 DLR 488, 53 DLR 35, 42 DLR 462, 42 DLR 462, 52 DLR 461, 52 DLR 461, 44 DLR 515, 43 DLR 187, 52 DLR 461, 48 DLR (AD) 180, 52 DLR 461, 52 DLR 461, 42 DLR 462.

Case Year: 1952

Subject: BUILDING CONSTRUCTION

Delivery Date: 2018-01-31

Section 3-

Abul Kashem (Md) vs Chairman, RAJUK and others 52 DLR 488.

Section 3-

The whereabouts of the owner being well known issuance of notice to the owner is absolutely the correct procedure and is a constructive notice to the occupier.

Meridian International (Pvt) Ltd and another vs Rajdhani Unnayan Kartripakha (RAJUK) and others 53 DLR 35.

Section 3-

Rajdhani Unnayan Kartripakshya (RAJUK) and others vs Water Front Apartment Ltd and ors 42 DLR 462

Sections 3, 9 and 12-

Pariman Hashi Grosser vs Authorised Officer CDA 42 DLR 462.

Section 3B-

A Rouf Chowdhury and another vs Bangladesh and others 52 DLR 461.

Section 3B-

RAJUK was never given any power to remove and/or demolish any construction on the ground of height under the provisions of section 38 of the Act.

A Rouf Chowdhury and another vs Bangladesh and others 52 DLR 461.

Sections 3B and 6—

Anwar Ali (Md) vs RAJUK 44 DLR 515.

Sections 3B and 7-

Habibullah Chowdhury vs RAJUK 43 DLR 187.

Sections 3B and 9-

In regulating orderly development of the Metropolitan City of Dhaka, RAJUK has got no right to transgress upon the rights of the citizens.

A Rouf Chy and another vs Bangladesh and others 52 DLR 461.

Section 3B(l)(b),(3)(5)-

The impugned order of the Authorised Officer lacks any legal basis and cannot be sustained.

Abdus Sattar (Md) vs Bangladesh and others 48 DLR (AD) 180.

Section 9-

A Rouf Chowdhury and another vs Bangladesh and others 52 DLR 461.

Section 9-

RAJUK cannot permit its decision to be influenced by the dictates of others, how big they may be, as this would tantamount to abdication and surrender of its discretion.

A Rouf Chowdhury and another vs Bangladesh and others 52 DLR 461.

Section 12(3)-

Provision of section 12(3) cannot be of retrospective effect, it being a penal provision.

Pariman Hashi Grosser vs Authorised Officer CDA 42 DLR 462.

Burmese Buddhist Law

Question of inheritance-Propositus-Full sister-Whether respondent excludes the appellant in inheritance as ascendent.

Machafrue Magni vs Seman Magni 41 DLR 457.

Principle of Modem Burmese Buddhist Law, Sixth Edition, page 194 - Appellant being half sister, whether elder or younger than the propositus, does not inherit anything when the rival claimant is a full sister.

Machafrue Magni vs Seman Magni 41 DLR 457.

In Burmese Buddhist Law there is no power to dispose of property by Will. Nor can there be a family arrangement as to property left by the deceased except among his heirs.

Chanjury Talukder vs Chingneshay Magni 44 DLR (AD) 152.

A Burmese Budhhist cannot make a will under Burmese Buddhist Law of inheritance.

Chanjury Talukder vs Chingneshay Magni 40 DLR 532.

Cantonment Act, 1924 & Carriage of Goods by Sea Act, 1925

Cantonment Act, 1924

Section 73-

Non-payment of maintenance costs by the previous owner cannot be a ground for refusal to mutate her name in the records of the Cantonment Board.

Cantonment Board Dhaka and another vs Sayeda Razhat Ara Quamrun Nahar and another 50 DLR (AD) 124.

Capacity Tax (Cinema House) Rules, 1983

Rule 9(2)-

Without the prior permission of the Customs Authority there is no scope under the law to increase or decrease the number of seats of a Cinema Hall.

Anwar Hossain (Md) vs. Secretary, Ministry of Finance, (Internal Resources Division) and others 49 DLR 321.

Carriage of Goods by Sea Act, 1925

[XXVI of 1925]

Hague Rules, Article 1(e) Rules 2 & 8 of Article III-

The defendant ship to which the goods were consigned remains responsible for the safe delivery of the goods to the port of discharge -Any transfer of goods to another ship does not absolve the defendant ship from its responsibility.

Duration of carrier's responsibility.-"The operation of the Carriage of Goods by Sea Act, 1925, in this behalf would commence from the time when the goods are loaded on the ship and would continue till their discharge from the said vessel at the destined port. This is clear from the definition of "carriage of goods" in Article 1 (e) of the rules in the said Act." Article 1(e) "Carriage of goods covers the period from the time when the goods are loaded on to the time when they are discharged from the ship"

Helenic Lines vs Bangladesh 39 DLR 93.

Articles III and IV-

As soon as the shipper delivers goods to the carrier at the port of origin in good condition he is entitled to receive the goods at the port of destination in the same good condition and the carrier will be held responsible for the loss or damage to the goods which are in his care and custody.

There is no onus under the law on the plaintiff to prove that the goods were damaged due to the negligence of the employees of the carrier while in the ship. It is not possible for the shipper to prove negligence or misconduct of the employees of the carrier while the goods were in the ship in their care and custody and it is for the carrier to show that his employees took due care and caution as reasonable men of ordinary prudence for the protection and preservation of the goods. That is why law provides that initial onus is on the shipper to show that he delivered the goods in good condition and received the same in damaged condition and then the onus is shifted on the carrier to prove that its employees took due care and caution as a reasonable man of ordinary prudence to protect the goods but in spite of their taking such action due to circumstance beyond their control such as perils of the sea, act of God, etc the goods were damaged.

Transoceanic Steamship Co Ltd vs Adamjee Insurance Co Ltd 46 DLR 23.

Censorship of Film Act, 1963

Section 7-

The moment he realised that his infatuation for Binodini is not approved by good sense and morality, Hason Raja made a sharp 'U tum' which very few people of his age and advantage could have done. This scene has glorified Hason Raja instead of villifying and castigating him so as to hurt the religious sentiment of the disciples and admirers of Hason Raja.

Sadia Chowdhury Parag vs Chairman, Film Censor Board and others 55 DLR 445

Chief Justice's Rules

A litigant has vested right to continue the proceedings in the pre-existing forum.

Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

CANTONMENT ACT, 1924 & CARRIAGE OF GOODS BY SEA ACT, 1925

Citation: 50 DLR (AD) 124, 49 DLR 321, 39 DLR 93, 46 DLR 23, 55 DLR 445, 41 DLR (AD) 165.

Case Year: 1924

Subject: CANTONMENT, CARRIAGE OF GOODS BY SEA

Delivery Date: 2018-01-31

Cantonment Act, 1924

Section 73-

Non-payment of maintenance costs by the previous owner cannot be a ground for refusal to mutate her name in the records of the Cantonment Board.

Cantonment Board Dhaka and another vs Sayeda Razhat Ara Quamrun Nahar and another 50 DLR (AD) 124.

Capacity Tax (Cinema House) Rules, 1983

Rule 9(2)-

Without the prior permission of the Customs Authority there is no scope under the law to increase or decrease the number of seats of a Cinema Hall.

Anwar Hossain (Md) vs. Secretary, Ministry of Finance, (Internal Resources Division) and others 49 DLR 321.

Carriage of Goods by Sea Act, 1925

[XXVI of 1925]

Hague Rules, Article 1(e) Rules 2 & 8 of Article III-

Helenic Lines vs Bangladesh 39 DLR 93.

Articles III and IV-

Transoceanic Steamship Co Ltd vs Adamjee Insurance Co Ltd 46 DLR 23.

Censorship of Film Act, 1963

Section 7-

Sadia Chowdhury Parag vs Chairman, Film Censor Board and others 55 DLR 445

Chief Justice's Rules

A litigant has vested right to continue the proceedings in the pre-existing forum.

Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Child Marriage Restraint Act, 1929

Section 2-

The Special Judge appointed under the Nari-o-Shishu Nirjatan Ain has travelled beyond his jurisdiction in holding that the victim being 15 years old was not legally competent to get herself married until attaining the age of 18.

Alam (Md) & another vs State 54 DLR 298.

Section 2(d)-

Lilu Rani Das and Liton Chandra Das will get maintenance from their father defendant petitioner upto age of 18 years from December, 1987 and Lipi Rani Das, youngest daughter, will get maintenance till her marriage and plaintiff opposite party the wife will get the maintenance as per terms and conditions laid down by the trial Court in the judgment and decree.

Ganesh Chandra Das vs Arati Acharjya , 54 DLR 348.

Children Act, 1974

Sections 6 & 66(1)-

When age of the accused is claimed to be below 16 yearsa duty is cast upon the Court to direct an enquiry to be satisfied itself as to whether the accused is a child below 16 on the day of framing charges against him.

Monir Hossain (Md) @ Monir Hossain vs State 53 DLR 411.

Chittagong Hill Tracts Regulation, 1900

Regulations 4, 9 & 17-

Any aggrieved party against the decision of the Divisional Commissioner in civil matters can maintain an application under Article l 02 of the Constitution and not a revision petition under Section 115(1) CPC.

Bangladesh Forest Industries Development Corporation and others vs Sheikh Abdul Jabbar 53 DLR 488

Regulation 4(1)-

The provisions of the Code of Civil Procedure are not applicable in the Chittagong Hill Tracts.

Bangladesh Forest Industries Development Corporation and others vs Sheikh Abdul Jabbar 53 DLR 488

Regulation 4(1)-

The Chittagong Hill Tracts Regulation, which is a special law and since there is specific bar, the procedures in Civil Procedure Code will not be applicable.

Bangladesh Forest Industries Development Corporation and others vs Sheikh Abdul Jabbar 53 DLR 488

Regulation 9-

This Court has no power or jurisdiction to examine the legality or the propriety of any order or judgment made by the Divisional Commissioner in respect of civil matter in exercise of revisional jurisdiction.

Bangladesh Forest Industries Development Corporation and others vs Sheikh Abdul Jabbar 53 DLR 488

Regulation 17(2)(3)-

No appellate or revisional power has been given to the High Court Division against any order passed by the Commissioner or by the Government.

Bangladesh Forest Industries Development Corporation and others vs Sheikh Abdul Jabbar 53 DLR 488

Rule 48—

Forced retirement of Mauza Headman-Whether violative of natural justice- There is no provision under the Rules for forced retirement, although action against the headman could be taken on grounds of incompetence or misconduct. The forced retirement of Headman Shewe Hla Prue TK is a punishment and, as such, it was necessary for the respondents to give him an opportunity of being heard before passing the impugned orders.

Shewe Hla Prue TK vs Commissioner, Chittagong 44 DLR 539.

CHITTAGONG HILL TRACTS REGULATION, 1900

Citation: 53 DLR 488, 53 DLR 488, 53 DLR 488, 53 DLR 488, 53 DLR 488, 44 DLR 539

Case Year: 1900

Subject: CHITTAGONG HILL TRACTS

Delivery Date: 2018-01-31

Regulations 4, 9 & 17-

Bangladesh Forest Industries Development Corporation and others vs Sheikh Abdul Jabbar 53 DLR 488

Regulation 4(1)-

The provisions of the Code of Civil Procedure are not applicable in the Chittagong Hill Tracts.

Bangladesh Forest Industries Development Corporation and others vs Sheikh Abdul Jabbar 53 DLR 488

Regulation 4(1)-

The Chittagong Hill Tracts Regulation, which is a special law and since there is specific bar, the procedures in Civil Procedure Code will not be applicable.

Bangladesh Forest Industries Development Corporation and others vs Sheikh Abdul Jabbar 53 DLR 488

Regulation 9-

Bangladesh Forest Industries Development Corporation and others vs Sheikh Abdul Jabbar 53 DLR 488

Regulation 17(2)(3)-

No appellate or revisional power has been given to the High Court Division against any order passed by the Commissioner or by the Government.

Bangladesh Forest Industries Development Corporation and others vs Sheikh Abdul Jabbar 53 DLR 488

Rule 48—

Shewe Hla Prue TK vs Commissioner, Chittagong 44 DLR 539.

Chittagong Municipal Corporation Ordinance, 1982

The Chittagong Municipal Corporation constituted under Ordinance XXXV of 1982 is a Corporation as contemplated by the Martial Law Order 40 of 1982, but with certain qualifications as laid down in the said Martial Law Order, which means, it must be constituted, established, managed, administered or mainly financed by the Government.

ASM Amanullah vs Chittagong Municipal Corporation 38 DLR 367.

Chittagong Port Act, Chittagong Port Authority Ordinance

Chittagong Port Act [Bengal Act V of 1914]

Section 109(1)-

A question of law can be raised even in the court of last resort even though not raised before.

It is well settled principle of law that a question of law can be raised even in the Court of last resort even though not raised before. Moreover, the following observation of their Lordships in Trustees of Chittagong Port vs Sadharan Bima, 32 DLR 99 is complete answer to the contention of Mr Mokbul Ahmed "The defendant Port Trust is not even required to take up the defence that no notice under section 109 (1) has been served. It is also not competent to waive the mandatory requirement of notice."

Chittagong Port Authority vs Hong Kong Shipping Lines 41 DLR 332.

In view of the mandatory requirement of the notice to be served upon the Port Authorities before the suit is brought against them the Court has no alternative but to dismiss the suit.

In view of the provisions of section 109( 1) of the Chittagong Port Act, 1914 the court has no alternative but to dismiss the suit where the plaintiff fails to comply with the mandatory requirement of section 109( l) of the Act. In this case, no notice having had been issued as contemplated in section 109(1) of the Act the suit must be dismissed notwithstanding the fact that no plea was taken by the defendant that the suit is liable to be dismissed for want of notice or that the defence waived the requirement of such notice by not raising the plea of want of notice.

Chittagong Port Authority vs Hong Kong Shipping Lines 41 DLR 332.

Port Authority is not liable for any loss in this case as they informed the owner of goods to locate the same.

In this case as the owner of the drums did not remove the same from the jetty premises, without any fault on the part of the Jetty Administration, within clear 7 working days from the time of landing of the drums in question the Jetty Administration is not liable for any loss as in this case the Port Authority informed the owners of the drums to find out the same and there was no fault on the part of the Port Authority to locate the goods.

Chittagong Port Authority vs Hong Kong Shipping Lines 41 DLR 332.

Chittagong Port Authority acts as a bailee so long the goods remain in their possession. Section 50A of the Port Act will not operate if the necessary procedure is not followed.

It is true that under section 50A of the Chittagong Port Act the, Port Authority is responsible for the loss of goods landed and remained in its possession or control as a bailee in view of the provisions of sections 151, 152 and 161 of the Contract Act, 1872. But section 50A will not operate in a case where the goods landed under nil mark and the consignee fails to follow the nil mark procedure to locate the goods by reason of sub-rule (f) and (g), Rule 64 of General Rules and the Schedules for Working of the Chittagong Port (Railway) Jetties.

Chittagong Port Authority vs Hong Kong Shipping Lines 41 DLR 332.

Chittagong Port Authority Ordinance, I 976

Section 19-

The Admiralty Judge, in allowing the vessel to have the territorial waters of Bangladesh without payment of her dues payable to the Chittagong Port Authority, travelled beyond his jurisdiction.

Chairman Chittagong Port Authority & another vs Ministry of Defence and others 49 DLR (AD) 152.

Chittagong Port (Railway Jetties) Rule

General Rules and schedules working of the Chittagong Port Railway Rules 122 clause (a)(ii)-Responsibility of issuing short-landing certificate for imported goods being that of the Port Authority (Chittagong), the Authority's failure to notify the consignee (plaintiff) that a certain portion of the short-landed goods were lying in certain shed not known to the plaintiff, will exonerate the plaintiff of any liability if he fails to take delivery of the same. In case these goods were in damaged condition the plaintiff, if he had such notice, could have them duly surveyed to ascertain the measure of damage for claiming compensation.

Bangladesh Railway vs Messrs Chartering and Shipbroking Corporation 37 DLR (AD) 47.

The trial Court decreed the plaintiffs suit on contest. On appeal the High Court Division modified the trial Court's decree holding that the plaintiff could get compensation in respect of the difference between 5567 bags and 3337 bags, that is, 2230 bags; according to the High Court Division, 3337 bags out of 5567 bags were lying in Shed No. 5 of which the plaintiff failed to take delivery and on account of its failure to clear those bags from the shed it is not entitled to claim any compensation thereof.

Bangladesh Railway vs Messrs Chartering and Shipbroking Corporation 37 DLR (AD) 47.

Defendant 4 (Port Authority) cannot claim exemption under Rule 122(a)(ii)

Unless it could be shown that the plaintiff applied to the Port Authority for storing the cement bags and after obtaining its permission entered into an open storage agreement, as referred to in clause (a) of Rule 122, the exemptions provided in the sub-clause (ii), cannot be claimed by the Port Authority. The plaintiff did not have an iota of knowledge regarding either the storage or the number of cement bags claimed to have been stored by the Port Authority.

Bangladesh Railway vs Messrs Chartering and Shipbroking Corporation 37 DLR (AD) 47.

Issue of short-landing certificate is Port's responsibility-Failure to notify plaintiff about storage fact absolves plaintiff of any liability.

Bangladesh Railway vs Messrs Chartering and Shipbroking Corporation 37 DLR (AD) 47.

CHITTAGONG PORT (RAILWAY JETTIES) RULE

Citation: 37 DLR (AD) 47, 37 DLR (AD) 47, 37 DLR (AD) 47, 37 DLR (AD) 47.

Subject: CHITTAGONG PORT (RAILWAY JETTIES)

Delivery Date: 2018-01-31

Bangladesh Railway vs Messrs Chartering and Shipbroking Corporation 37 DLR (AD) 47.

Defendant 4 (Port Authority) cannot claim exemption under Rule 122(a)(ii)

Bangladesh Railway vs Messrs Chartering and Shipbroking Corporation 37 DLR (AD) 47.

Issue of short-landing certificate is Port's responsibility-Failure to notify plaintiff about storage fact absolves plaintiff of any liability.

Bangladesh Railway vs Messrs Chartering and Shipbroking Corporation 37 DLR (AD) 47.

Civil Courts Act, 1887

Sections 3 & 5—

Law in force at the time of filing the appeal and not law prevalent at the institution of the suit will determine the forum of appeal.

Ali Akbar Khan vs Alimuddin 44 DLR 338.

Sections 3, 10, 18, 20 and 21-

Under section 18 of the Act the jurisdiction of a District Judge or Subordinate Judge extends (subject to the provision of section 15 of the Code) to all original suits cognisable by Civil Courts.

Sonali Bank vs Abidur Rahman 42 DLR 3ll.

Section 5—

When the legality and propriety of the impugned order dated 19-5-1987 is dependent upon the construction and interpretation of section 5, whether the provision of that section is directory or mandatory.

Ebadat Ali vs Ismail Hossain Akhand 41 DLR 490.

Section 13-

Question of maintainability of suit: The Gazette Notification dated 21st October, 1984 assigned special jurisdiction to a Sub-Judge and Commercial Court relating to cases involving non-realisation of loans taken from financial institutions and banks. In the present suit the plaintiff having prayed for certain declarations relating to his property and the Sub-Judge being the court of original jurisdiction to adjudicate upon the issues involved in the suit, it is maintainable before the Sub-Judge as framed.

ANM Toufiq vs Janata Bank, Dilkusha CIA Motijheel Dhaka 42 DLR 439.

Section 18—

Under section 18 of the Act the jurisdiction of a District Judge or Subordinate Judge extends (subject to the provision of section 15 of the Code) to all original suits cognizable by Civil Courts.

Sonali Bank vs Abidur Rahman 42 DLR 311.

Sections 18, 20 and 21-

The Court of the Subordinate Judge is lower in grade in relation to the District Judge though concurrent jurisdiction has been given to both the courts under section 18 of the Act.

Sonali Bank vs Abidur Rahman 42 DLR 3ll.

Section 21-

Appeals to a Dist Judge have been provided from a decree or order of a Subordinate Judge or in some cases from that of a Munsif.

Ruhul Amin vs District Judge 38 DLR (AD) 172.

Section 21(1)-

The appellate jurisdiction of the District Judge having been enhanced to a valuation of Taka 70,000 by the Ordinance No. 2 of 1983 on 16-1-1983, the District Judge is quite competent to pronounce judgment on 2-5-1983 on the present probate proceeding valued at Taka 45,000.

Kalpana Das Gupta vs Bangladesh 40 DLR 373.

Section 21(1)(a)-

Under section 21(l)(a) of the Act from a decree or order of a Subordinate Judge an appeal shall lie to the District Judge when the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed Taka 70,000.

Sonali Bank vs Abidur Rahman 42 DLR 311.

Section 22(1)-

District Judge derives power of transfer or withdrawal of a case under section 24(i)

The District Judge derives such power from section 24(1) CPC. Section 24(1) provides that either on the application of any parties after notice to the parties and on hearing them or of its own motion without such notice the District Court may at any stage transfer any appeal pending before it for disposal to any Court subordinate to it and competent to dispose of the same, or withdraw any appeal pending in any Court subordinate to it, and transfer the same for disposal to any Court subordinate to it competent to dispose of the same; or re-transfer the same for disposal to the Court from which it was withdrawn.

Sub-section (2) of section 24 speaks that for the purpose of section 24 Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District judge. Section 22 of the Civil Courts Act, 1887 also provides that a District Judge may transfer to any Subordinate Judge under his administrative control any appeal pending before him from the decrees or orders of Munsifs.

Muhammad Zulfikar vs Abul Kalam Chowdhury & others 42 DLR 21.

-District Judge as referred to in section 29(4) has ample authority to transfer an appeal pending before him preferred from the decision of Election Commissioner.

Muhammad Zulfikar vs Abul Kalam Chowdhury 42 DLR 21.

Civil Rules and Orders

Rule 127 Ch. VII –

Payment of cost-When the Court passed an order asking the plaintiff to pay costs on his application for adjournment of hearing he was bound to abide by the order.

Ansar Ali vs Yeasin Mea 45 DLR 517.

Rules 388(2) & 466(2) –

Communication of orders - Effect of absence of communication of Court's order to a party. An order of the Court affecting one of the pillars of the suit is meant for communication to all parties concerned. Since the Court's order transferring the suit from one Court to another was not communicated and the course of the suit took an adverse turn to the prejudice of the defendant behind his back and without his knowledge, the suit was rightly restored by the High Court Division.

MA Wahab and another vs Abul Kalam and another 44 DLR (AD) 13.

Rules 419 & 820-

The senior Advocate can only appear and plead on behalf of the party if he is either engaged by the party itself or by the already appointed lawyer in the case.

Abdul Mannan vs Abdul Aziz 46 DLR 477.

Rule 265(2)-

The trial Court may expunge the relevant portion of the report about possession and may direct the Advocate Commissioner to resubmit his report according to Jaw deleting the comment about possession of the parties which will be determined by the court after recording evidence.

Sufia Islam Shila and another vs Shakhawat Hossain and others 54 DLR 178.

Rule 388(2)-

When a person is no longer the appointed Advocate of a party, it is incumbent upon the subordinate judge to communicate an order to the parties about the arrival of the records of the case from the High Court Division.

Makbul Ahmed and others vs Mohammedullah and others 54 DLR 399.

Rules 69 & 84 (Volume I Chapter 3)-

On receipt of service return notice, the court's duty is to see the manner of service and record it in the order sheet whether the notice has properly been served.

Nirman International Ltd vs Islam Steel Mills Ltd and others 50 DLR 125.

Rule 773—

Rule 773 of the Civil Rules and Orders speaks that application for revocation of probate and letters of administration should be treated in the same manner as an application for probate or letters of administration. This classification is only for the limited purpose of submitting report to the High Court and as such from this it will be totally erroneous to hold that the order passed in a revocation proceeding is a decree.

Golak Chandra Roy vs Niva Rani Guha Roy 40 DLR 382.

Rule 26 (Volume I Chapter-1)-

Time granted to the plaintiff-petitioner till 25-11-1982 for deposit of deficit Court-fees-When time was allowed to put in deficit court-fees within a day, the learned Sub-Judge had no jurisdiction to reject the plaint without waiting till the end of the day (25-11-1982) fixed for such deposit-Rejection of plaint held illegal.

Bangladesh vs Messrs Birda Bangladesh Agencies Ltd 40 DLR 338.

Rules 69 and 84(e)-

Service of summons, proof of - Summons served by process-server without noting the names and addresses of Mokabila witnesses in the service return Process-server appearing in Court as a witness - his evidence without examining the Mokabila witness not acceptable-It is obligatory upon the process-server to mention in his report the name and address of the person if any, by whom the house in question was identified and in whose presence the copy of summons was affixed - When service reports were devoid of these essential information, they were unacceptable - Mere personal appearance of the process-server as a witness in Court did not make the report acceptable.

Upendra Chandra Rishi vs Sufia Begum 42 DLR (AD) 285.

Rule 70 –

Service of summons in presence of at least "two independent local residents" "whenever possible." Signatures of Mokabila witnesses to be obtained by the process-server. In case of absence of such signatures, process server is to explain why signatures could not be obtained. Absence of explanation raises a reasonable suspicion.

Rule 70 of the Civil Rules and Orders Vol. 1 provides for service of the summons in presence of at least "two independent local residents." Service in presence of a resident of a different locality without any explanation about his competence is not certainly in accordance with Rule. Again, under this Rule 70 the process server is required "whenever possible" to obtain the signatures of the Mokabila witnesses. This implies that in the case of absence of signatures of the Mokabila witnesses the process server is required to explain in the report why it could not be possible to obtain the signatures. The absence of such an explanation also raises a reasonable suspicion that no Mokabila witness was at all present.

Alhaj Abdul Aziz vs Kalipada Das 41 DLR 170.

Civil Service Regulation & Civilian Employees in Defence Service

Regulation 4-

There can be no manner of doubt that the rules relating to pension are statutory rules which determine the rights of the pensioners on the one hand and liability of the Government on the other.

Bangladesh Retired Government Employees Welfare Association & others vs Bangladesh and anr 51 DLR (AD) 121.

Civilian Employees in Defence Services (Classification, Control and Appeal) Rules, 1961

For legal remedies in service matters civilian employees in Defence Services can well invoke the jurisdiction of the Administrative Tribunal.

Ishaquddin Ahmed @ Md Ishaquddin Ahmed vs Commandant, School of Armour and Centre, Bogra Cantonment, Bogra and others 51 DLR (AD) 144.

Rule 11(1)-

The mere fact that the Inquiring Officer (a member of the Defence Service) and the petitioner are both theoretically in the similar rank will not vitiate the proceedings in view of the fact that the expression "being senior in rank as far as possible" indicates sufficiently that it is directory in nature.

Serajul Islam Thakur vs Bangladesh 46 DLR 319.

Co-operative Society

Co-operative Society Ordinance, 1985

Sections 86 & 133-

The jurisdiction of the Civil Court to try all disputes of civil nature under section 9 of the Code cannot be taken away lightly- it can be so done only when it is specifically barred under any law.

Hilly Housing Co-operative Society Ltd vs Akhtaruzzaman Chowdhury and ors 54 DLR 46.

Sections 86 and 133-

The plaint of a suit for declaration that the election of the society is illegal and the Executive Committee constituted thereof void, cannot be rejected when the plaintiff challenged the validity of the election.

Abdul Hannan vs Managing Committee Mohammadia Market Baboshahi Bahumukhi Samabaya Samity Ltd 55 DLR 409

Co-operative Societies Rules, 1987

Rule 23-

Abdul Hannan vs Managing Committee Mohammadia Market Baboshahi Bahumukhi Samabaya Samity limited 55 DLR 409.

Code of Civil Procedure, 1908 (Order I-V)

Order I rule 3—

The term 'proforma' means for the sake of form only. The expression 'proforma' does not appear in any provision of the Code of Civil Procedure. The terms are only 'plaintiff and 'defendant' and no 'proforma' in the said Code.

Bangladesh Power Development Board vs Sonali Bank 40 DLR 340.

Order I rule 3—

Proforma defendants-The decree would be binding upon the proforma defendants though passed in their absence-The plaintiff and the PDB though a proforma defendant, fought out the suit clearly understanding the issues and the claim they were making against each other.

Bangladesh Power Development Board vs Sonali Bank 40 DLR 340.

Order I rule 3—

A party though described as proforma in a suit would be bound by a decree passed in his presence after he has contested the suit by filing a written statement making an adverse claim against the property in the suit.

Bangladesh Power Development Board vs Sonali Bank 40 DLR 340.

Order I rule 3—

Non-contesting proforma defendants would not be bound by the decree if they were not necessary parties and if no relief is sought against them. The decree passed in the money suit in the presence of the proforma defendants would be binding upon them, though they were proforma only.

Bangladesh Power Development Board vs Sonali Bank 40 DLR 340.

Order I rule 3—

Defect of PartyImpleading of a nationalised company placed under a corporation whether constitutes defect of party-Defendant No. 1 is a nationalised company placed under a corporation renamed as Bangladesh Steel and Engineering Corporation. The company has not thereby lost its legal entity as a juristic person. It can sue and be sued without the corporation which controls the defendant company under Persident's Order 27 of 1972 and, as such, the suit in question could proceed against the defendant No. 1 without impleading the corporation.

Progati Industries Ltd vs Shahida Khatun 43 DLR 29.

Order I rules 3 and 4-

All person may be joined as defendants claiming relief against all, there being a common question of fact and law involved.

Bangladesh Railway vs Messrs Chartering and Shipbooking Corporation 37 DLR (AD) 47.

Order I rule 7-

There is no scope to allow the application filed by defendant No. 1 for giving direction to defendant No. 2 to make payment under the letter of credit when the former had not gone to Court praying for any relief and when the plaintiff's appeal itself (on the injunction matter) is being dismissed.

Sarhind Garments Ltd vs Glory Truth Industries Ltd and another 49 DLR 260.

Order I rule 8-

Representative SuitObject- The object with which this provision was enacted is to facilitate decisions on questions in which a larger body of persons are interested withoutrecourse to the ordinary procedure where each individual has to maintain action by separate suit.

Government of Bangladesh vs Mirpur Semipucca (Tin-shed) Kalayan Samity & others 54 DLR 364.

Order I rule 8-

Representative Suit Benefits-A decree passed in a representative suit enures to the benefit of or binds all the persons represented in the suit.

Government of Bangladesh vs Mirpur Semipucca (Tin-shed) Kalayan Samity & others 54 DLR 364.

Order I rule 8-

Representative SuitLeave-In the absence of the necessary leave, the suit cannot assume the character of a representative suit.

Government of Bangladesh vs Mirpur Semipucca (Tin-shed) Kalayan Samity & others 54 DLR 364.

Order I rule 8 and Order XXXIX rule 1-

Representative suit under Order 1, rule 8 CPCPrayer for ad-interim injunction restraining the defendants from proceeding with the construction refused by the trial Court and the same was affirmed by the lower appellate Court-High Court Division summarily rejected the revisional application filed under section 115 CPCDirective principles of State (Articles 8-25 of the Constitution of Bangladesh) considered.

However, the need for judicial intervention may not arise even in those cases where the Court's jurisdiction is invoked if the administration takes preventive, remedial and curative measures meanwhile.

Ziaul Huq vs Messrs Business Resources Ltd 42 DLR (AD) 80.

Order I rules 9 and 10(2)-

Discretionary power-Manner of exercise-Legal principles to be followed-The impugned order passed in clear violation of the principles emanating from the provisions of law is not sustainable.

Gani Mia vs UNO Biswanath 42 DLR 72.

Order I rule 9-

Order 1 rule 9 of the Code of Civil Procedure is applicable in case of nonjoinder of necessary parties in the application for pre-emption in view of section 141 of the Code of Civil Procedure. Section 96(2) of the said Act creates obligation on the part of the pre-emptor to make co-sharer tenants in the disputed holding as parties to the pre-emption application.

Abdus Satter and others vs Abdun Noor and others 49 DLR 414.

Order I rule 9-

In spite of the Government being not joined as a party in the suit, the Courts below dealt with the matter of controversy so far as regards the right and interest of both the parties and, as such, by mere non-joinder of the Government the suit cannot be defeated.

Abdul Quayuam Khan vs Abu Yusuf Mridha 5 I DLR 386.

Order I rule 10-

Addition of parties Knowledge of fact subsequent to the institution of the suit-Petitioner can amend the plaint to include his claim.

Nuruddin Ahmed vs Zafarullah Siddique 42 DLR 246.

Order I rule 10-

Dismissal of an application by a person made under Order I, rule l 0, CPC to be added as a party in a probate proceeding does not deprive the party of its right to apply for revocation of grant of probate under section 263, Succession Act (the petitioner).

Azifa Khatun vs Tulshi Ranjan Roy 37 DLR 268.

Order I rule 10-

The suit will be encumbered by the addition of parties which is not necessary or proper for adjudication of the dispute between the plaintiff and opposite party Nos. 1-4 as there would be unnecessary stress on the plaintiff.

Gani Mia vs The UNO Biswanath 42 DLR 72.

Order I rule 10-

Parties sought to be impleaded were not parties to the contract between the plaintiff and the original defendants nor any contract or right of these parties had been infringed upon-Held: that these parties not entitled to be impleaded.

Gani Mia vs UNO Biswanath 42 DLR 72.

Order I rule 10-

Where the suit was decreed ex parte and persons entitled to be added as parties to the suit make an application to add them as parties and to set aside the ex parte decree. Court should add them as parties and give them an opportunity to set aside the ex parte decree.

Ahmed Hossain vs Dr AA Rizvi 38 DLR 173.

Order I rule 10-

The Appellate Division left the question unanswered in the case reported in 33 DLR (AD) 245 as to whether the provisions of Order I, rule I 0 CPC are applicable to probate proceedings under section 283(1) of the Succession Act (XXXIX of 1925).

Kalpana Das Gupta vs Bangladesh 40 DLR 373.

Order I rule 10-

A proceeding before a District Delegate ceases to be non-contentious when there is an appearance. He is not to decide the merit of the "Contention" or take a decision under Order 1, rule IO CPC whether an application under Order I, rule 10 CPC ought to be allowed or not.

Kalpana Das Gupta vs Bangladesh 40 DLR 373.

Order I rule 10-

The petitioners who have made a prayer to be added to be a party to the proceeding have no locus standi to file an application for addition of parties to the proceeding.

Md Makbul Hossain vs Sree Sibu Pada Dam 40DLR120.

Order I rule 10-

In a suit for specific performance of contract it is not permissible to adjudicate on the question of title of stranger to the contract, who need not therefore be made a party to such a suit.

Feroja Khatoon vs Brajalal Nath 43 DLR 160.

Order I rule 10-

Sub-tenant's claim to be added as a party in a suit for ejectment- although a sub-tenant is a necessary party in a suit for ejectment and requires to be added in such a suit but unless it is proved that he is a sub-tenant under the tenant, the question of his addition as a defendant does not arise.

Nurul Absar Chowdhury vs Haji Abdul Hoque 43 DLR 112.

Order I rule 10-

The order adding the respondent as opposite party in the revision case being founded on no proper premises cannot be passed off merely because it was made in the exercise of a discretion.

Subash Chandra Halder vs Abdul Bari 44 DLR (AD) 253.

Order I rule 10-

Party to be imp leaded in ejectment suit--Only those persons who are in physical possession of the suit property should be made defendants and others are neither necessary nor proper parties in a suit for ejectment.

Sher Mohammad vs Saroda Bala Sen 45 DLR 527.

Order I rule 10-

Addition of party in a suit for specific performance of contract-The appellants' averments in the application for addition of party setting up an independent title to the land disentitle them to be included as parties within the framework of the present suit wherein the real question to be determined is whether the contract for sale between the parties therein was genuine and whether on the basis thereof the plaintiffs are entitled to get a decree. The averments for addition of party will convert the present suit into one for determination of title which is not permissible in law.

Golam Kader and others vs Abdul Khaleque Choukder and others 43 DLR (AD) 107.

Order I rule 10-

In a suit for ejectment of tenant when the petitioners are not in possession of the suit premises and the ownership thereof remained very much a disputed fact, they are neither necessary nor proper parties to be added in the suit.

Sher Mohammad vs Sarada Bala Sen and another. 46 DLR 517.

Order I rule 10-

Parties cannot be allowed to obtain documents in respect of the suit land during the pendency of the suit for partition in the names of their sons and daughters to set up a case at the peremptory hearing different from the one they had earlier set up so as to further linger the litigation. Thus the impugned order adding opposite party Nos. 1-8 in the suit, they being no necessary parties, is set aside and the written statement if any, filed by them is also rejected.

Aynaddin Howlader vs Maniruzzaman Mani 46 DLR 458.

Order I rule 1O-

Only lessees in possession are necessary parties in a suit against the lessor. Neither in the petition referred to above nor in any other petition the appellants have asserted that they are continuing as lessees upon renewal of lease by the Government and payment of rent even after institution of the present suit in 1987.

The learned Subordinate Judge found that the appellants were lessees for only one year, 1389 BS and there was no paper in support of their claim of present lease. In the circumstances of the case we do not think that any illegality has been committed by the High Court Division in rejecting the revisional application of the appellants.

Bahar Ali Pramanik & ors. vs Mosar Ali Pramanik & others 45 DLR (AD) 120.

Order I rule 10-

A person is entitled to be added as a party in a suit even he be a stranger, if he has direct interest, legal or equitable, in the dispute.

Fatema Khatoon vs City Bank Ltd and others 49 DLR 117.

Order I rule 10-

In a partition suit even a third person claiming title to property adverse to plaintiff and defendant is necessary party. In exceptional circumstances addition of parties can be allowed even after preliminary decree is passed.

Abdur Rahman and others vs Abdus Sattar and others 49 DLR 60.

Order I rule 10-

The apprehension in the minds of the petitioners that the transferor- defendants are not interested to proceed with the suit cannot be said to be without any foundation. Weighing the entire facts, the petitioners are required to be impleaded as defendants in the suit just to protect their right.

Mokthar Masum Abedin and others vs Nironjan Kumar Mondol and others 50 DLR 341.

Order I rule 10-

Ordinarily when a suit is filed against a company the Director and shareholders are not necessary parties in the suit. But when allegations of misappropriation are made against them they cannot be said to be not necessary parties and their names cannot be struck off from the plaint.

Makbulur Rahman and others vs Halima Textile Mills Ltd Employees Provident Fund Trust, Comilla and others 47 DLR 449.

Order I rule 10-

The Assistant Custodian, Vested Property having claimed interest in the suit property directly through the testator and not through any third person, his addition as a party in the probate proceeding needs no interference.

Latika Rani Das vs Bibhabati Roy Chowdhury and others 48 DLR 404.

Order I rule 10-

Even after an objection is taken by the defendant on the question of defect of parties and the plaintiff fails to implead them as parties to his suit, he must do so at his own risk and peril but none can compel him to implead parties against his will.

Falu Mia vs Md Nazrul Islam and others 51DLR486.

Order I rule 10-

In the suit for partition the sole plaintiff relinquished her interest and filed a compromise petition in Court. In view of the fact that the petitioners claim share through original owner, they are entitled to be transposed in the category of the plaintiffs from defendants.

Abdul Jalii Shah and another vs Rahima Khatun and others 51 DLR 441.

Order I rule 10-

Non-joinder of parties

The result of the suit will be binding upon the parties to the suit and not upon any one not made party thereto. The decree can be challenged as such by the party left out and not by others on the ground of non-joinder.

Qaiyum Khan and others vs Sudarshan Singh and others 52 DLR (AD) 53.

Order I rule 10-

As soon as the letters of credit are established between the issuing bank and the negotiating bank, it becomes an independent agreement between the two banks, neither the seller nor the buyer has any privity to that agreement. So the presence of the petitioner is not necessary for proper adjudication of the suit.

Zyta Garments Ltd vs Union Bank Ltd and another 55 DLR (AD) 56.

Order I rule 10-

If somebody comes before the court with an application that the whole transaction was forged, and cooked up for the suit with a view to grab the suit property and that the alleged vendor died long before the contract, his presence, it is difficult to say, would not be of any assistance to the court for adjudication of the issues.

Abdul Mannan (Md) vs Swaraj Roy and ors 54 DLR 352.

Order I rule 10-

When a party claims to be in possession, the Court is also under an obligation to see if by rejecting his prayer this Court is pushing the parties to multiplicity of proceedings.

Abdul Mannan (Md) vs Swaraj Roy and ors 54 DLR 352.

Order I rule 10-

The court has ample power to treat an application filed under Order I rule I 0 CPC as an application under Order XXII rule 10 CPC. Mentioning of a wrong provision of law is no ground for rejection of the application if the substance of the application discloses ingredients of passing appropriate order ..

Abu Taher Bhuiyan vs Lal Mohon Mondal and others 54 DLR 604.

Order I rule 10-

Under section 28 of the Contract Act, save as otherwise provided in the contract inself, the liability of the surety is coextensive with that of the principal debtor. In fact, the liability of the guarantor of surety is immediate and this need not be deferred until creditor exhausts his remedies aga4:nst the principal debtor.

IFIC Bank Ltd vs Chittagong Steel Mills Ltd and another 55 DLR 417.

Order I rule 10-

In a suit for specific performance of a contract, the parties to the contract are the only proper and necessary parties.

Saroj Kanta Sarker and others vs Seraj-udDowla and others 56 DLR 39.

Order I rule 10-

In a suit for ejectment of a tenant third party who is not claiming tenancy under the plaintiff is neither a necessary nor a proper party.

Noor Mohammad vs Md Noor Hossain and another 56 DLR 53.

Orders I rule 10 & Orders XXII rule 4-

Even if the facts stated by the petitioners in assertion of their right to be added as parties are taken to be correct then also they cannot be added as parties because they have no independent right to call in question the legality and propriety of the decree passed.

Abdur Rashid (Md) and others vs Bainchitala Junior High School 54 DLR (AD) 80.

Order I rule 10 & Order XXII rule 4-

Be it an application for addition of party or an application for substitution of heirs, the concerned parties must show that they have inherited the Estate left by their predecessor-in-interest.

Bainchitala lslamia Junior Madrasha vs Md Abdur Rashid & others 50 DLR 153.

Order I rule 10 and Order XXII rule 9-

Addition of parties is permissible in respect of the representatives and heirs of persons relating to whom a suit had abated provided there were sufficient reasons for it. This is in the discretion of the judge for the purpose of giving effect to the right of the parties.

Moqbul Ahmed vs Shoeb Chowdhury 44 DLR 156.

Order I rule 10 and Order XXII rule 10-

When one of the plaintiffs is not willing to proceed with the suit compromised, it is for the Court to transpose him as defendant under Order I, rule 10 CPC by striking off the name of the unwilling plaintiffs and allow him to continue under Order XXII, rule 10-Munsifs order of dismissal for non-prosecution on the basis of compromise outside the court is not sustainable.

Tamijul Huque vs Yunus Ali 42 DLR 234.

Order I rule 10 & Order XXII rule 10-

The petitioner No.2 acquiring interest in the suit property by way of exchange with petitioner I, the former has a right to be impleaded as a co-plaintiff in the suit.

Anil Ranjan Ghosh and another vs Assistant Custodian of Vested and Non-Resident Property and Additional Deputy Commissioner (Revenue) and another 49 DLR 296.

Order I rule 10(1)(2)-

Where a party seeks to be added as a co-plaintiff in a suit and puts forward conflicting claim as to title of the property in dispute he should not be allowed to be added as a co-plaintiff but he can be made defendant in the suit for the purpose of effective and complete adjudication of issues which may be raised for decision between the plaintiff and the defendant.

Md Idris vs Bazal Ahmed 40DLR317.

Order I rule 10(2)-

Addtion of party in a suit-Law laid down in 38 DLR (AD) 308 discussed along with other Judgments and followed. It is held that the petitioner is a party whose presence is necessary for complete and effectual determination of the issues in the suit.

Order does not show as to whether the Court had applied its judicial mind to the facts and circumstances of the case and as to how it had exercised its judicial discretion- The order cannot be maintained.

Md Afzal Hossain vs Mst Tahera Khatun 40 DLR 528.

Order I rule 10(2)-

Addition of a person, as plaintiff or defendant, may be ordered by such Addition -It Is necessary to settle all relevant matters Involved In the suit.

Parimal Majumdar vs A Sobhan 39 DLR 352.

Order I rule 10(2)-

A lessee in possession of the lease-hold property Is a necessary party as contemplated In Order 1, rule l 0(2), when a suIt Is brought against the lessor over the subject-matter of that property.

Parimal Majumdar vs A Sobhan 39 DLR 352.

Order I rule 10(2)-

An order under Order 1, rule 10(2) must show that the court applIed Its mInd to the facts of the case.

Nur Mohammad Mia vs Ashraf AlI MIa 39 DLR 325.

Order I rule 10(2)-

In strIkIng out a party's name from a declaratory suIt fIled agaInst the Govt to the effect that the suIt land Is not vested and non-resIdent land, the person to whom the land has been leased out by the Govt has a rIght to be Impleaded In the suIt partIcularly when the plaIntIff made hIm a party to the suIt when he fIled It.

Waliullah Munshi vs Lodu Patwary 38 DLR (AD) 308.

Order I rule 10(2)-

Interest of lessor and lessee may not always be same so as to say the presence of the lessor wIll protect the Interest of the lessee.

At the same It may be necessary to poInt out that the lessee may have more reasons or urgency to protect hIs Interest In the suIt land than the lessor. The Interest of lessor and lessee may not always be the same so as to hold that the presence of lessor as defendant In a suIt suffIces and the lessee's presence Is not necessary and may, therefore, be dIspensed wIth.

Waliullah Munshi vs Lodu Patwary 38 DLR (AD) 308.

Order I rule 10(2)-

In a suIt for SpecIfIc Performance of Contract the partIes to the contract are necessary partIes subject to general rule of exceptIon.

Md Nurul Abser Miah vs Kiron Shanker Nandy 41 DLR 148.

Order I rule 10(2)-

A transferee who purchases pro¢tly durIng the pendency of a suIt Is not a necessary party In a suIt for ejectment. Tozammel Hossain vs Fatema Khatun & others 45 DLR 697.

Order I rule 10(2)-In a suIt for specIfIc performance of contract only the partIes to the contract are necessary partIes. AddItIon of 3rd party wIthout any reason In such a suIt would convert It Into a suIt for determInatIon of tItle and thIs Is not permIssIble In law.

Muzaffar Ali and another vs Monwara Hospital and ors 51 DLR 341.

Order I rule 10(2) and sectIon 115(1) –

Necessary party-Impleading of-Since the petitioner Is In possession of the suit property on payment of part of the consideration money pursuant to an agreement for purchase, It cannot be said that he has no interest in the suit property-The petitioner, in that view, is a necessary party in whose presence the suit should be decided for proper and effective adjudication.

Dr Shakhawat Hossain vs Secretary, Ministry of Works, Government of Bangladesh 42 DLR 215.

Order I rule 10(2) & Order VI rule 17-

Belated prayer for addItIon of a necessary party or for amendment of pleadIngs by Itself Is no ground for refusal of such prayer If the addItIon or amendment Is necessary for a complete and effectual adjudIcatIon.

Hasina Khatoon and another vs Md Samsur Rahman and others 49 DLR 187.

Order I rule 10( 4)-

Amendment of plaInt for addItIon of party. Under Order 1, rule 10(4) where a defendant is added the plaint shall, unless the Court otherwise directs, be amended in such a manner as may be necessary.

Addition of a party cannot mean addition or introduction into a suit a new cause of action or to change its character, even though all the controversies are relatable to the property in dispute.

Addition of parties or rejection of parties under Order I, rule l 0 CPC being a discretion of the court may not be interfered with unless the order was perverse or contrary to law.

Addition of parties or rejection of addition of parties in exercise of the power under Order I, rule I 0 being a discretion of a Court, may not be interfered with unless it could be shown that the order was perverse or manifestly unjust and contrary to law. Except on those grounds, an order passed under Order I, rule 10 of the Code of Civil Procedure would not be revisable, even if it is erroneous.

Ishaque Hossain Chowdhury vs Mrs Shamsun Nessa Begum 41DLR23.

Order I rule 10(4)-

Addition of defendant and absence of amendment of plaint-After addition of defendant No. 3 as a party the plaintiff did not amend the plaint on the question of defalcation of money by him as covered by issue No. 4. In such circumstance the Subordinate Judge has erred in allowing the parties to lead evidence against the added defendant and therefore the decree passed against him is not sustainable.

Abdul Awai Mia vs Sonali Bank & others 43 DLR 201.

Order II rule I-

Frame of suit-Presence of necessary party-

The suit having been brought for declaring and setting aside an order passed by the Board of Intermediate and Secondary Education, Jessore and for mandatory injunction for publication of a particular result, the Board is the appropriate authority which is the necessary party in the suit. The suit is bad for non-joinder of the Board as a party.

Therefore, the suit is not properly constituted and the Courts below committed an illegality in decreeing the same.

Mohammad Mofizuddin vs Mohammad Feroj Alam 44 DLR 36.

Order II rule 3—

Pre-emption-

A co-sharer is competent to initiate the present pre-emption proceeding by filing one application under section 96( 1) of the State Acquisition and Tenancy Act by pre-empting lands transferred by different Kabalas where cause of action has been united under Order II, rule 3 CPC and the pre-emptor is not required in Jaw to seek leave of the Court for this purpose.

Knowledge of the date of sale-A finding as to knowledge of the petitioner about the sale of the land under pre-emption is a finding of fact and unless finding suffers from infirmity or it is perverse, the High Court Division will not interfere with the finding of the lower appellate Court in its revisional jurisdiction.

Sree Jitendra Nath Howlader vs Sree Bisweswar Howlader 42 DLR253.

Order III rules 1 & 2-

This Order and the rules have no application in the matter of signature on the plaint because it is not an act in or to a Court. A plaint can be signed outside the Court.

Anath Bandhu Guha & Sons Ltd vs Babu Sudhangshu Shekhar Halder 42 DLR (AD) 244.

Order III rule 2-

Provisions of Order III rule 2 empowers, amongst others, a duly constituted attorney to make appearance, applications, andlor to do acts for and on behalf of such absent party.

Shah Alam (Md) vs Abul Kalam and others 54 DLR 276.

Order III rule 2(a)-

Power of attorney must be executed according to the provision of section 85 of the Act otherwise a person holding a power of attorney is not legally permitted to represent his principal under Order III rule 2(a) of the Code.

Ramesh Chandra Chowdhury@ Das vs Naresh Chandra Das@ Chowdhury 52 DLR 227.

Order III rule 4(1) & Order VII rule 11-

Power-of-Attorney-Defect and disabilityWhen the power of attorney fails the embargo that follows will fall upon the lawyer and not on prosecution of suit by the principal. The disability attaches to the lawyer and not to the plaint. Court is to fix a date for steps to be taken by plaintiff when he may appear himself or by another recognised agent or by the same attorney after curing the defect. SSC Judge wrongly held that due to defect in power of attorney there was no cause of action for the suit, for it is the principal who has cause of action for the suit. Plaint can be rejected only when on the averments the plaintiffs is found not to have cause of action. Without rejecting the plaint the court has a clear duty to fix a date for the plaintiff to take steps.

Anath Bandhu Guha & Sons Ltd vs Babu Sudhangshu Shekar Halder 42 DLR (AD) 244.

Orders III-IV rule 1, Order VI rules 2, 14 and 15, Order VII rule 11-

The rule does not specifically pinpoint as to who shall present the plaint. Plaint need not be presented by the plaintiff personally or by a person duly authorised by him by power of attorney. If a plaint is not properly signed or verified or presented, the court has always the discretion to allow the plaintiff to cure the defects at a later stage. These are defects of technical nature relating to matters of procedure curable at any time. Order VII rule 11 is not at all attracted when there are defects in complying with the provisions of Order II or Order 6.

Anath Bandhu Guha & Sons Ltd vs Babu Sudhangshu Shekhar Halder 42 DLR (AD) 244.

Order III rule 4(2)-

Makbul Ahmed and others vs Mohammedullah and others 54 DLR 399.

Order IV rule l(b) & Order V rule 2-

Copy of the plaint is an integral part of the summons. To constitute a summons within the meaning of the provisions of the Code plaint must be accompanied with the summons either it be served by the process server or by registered post.

Mohammadullah and others vs Md Shamsul Alam alias Md Alam 55 DLR 428.

Order V rule I-

Petitioner entered appearance in the suit by filing a vokalatnama and filed written objection in the injunction matter but subsequently he did not file any written statement in the suit and consequently the ex parte decree was passed. The petitioner's plea that summons was not served upon him is not tenable at all.

Jalaluddin (Md) and others vs Laity Begum and others 48 DLR (AD) 163.

Order V rule 15-

Service effected on adult member of defendant's family in absence of defendant from his residence, when the service of summons is sought to be effected. In order to prove service of summons as per provision contained in Order V, rule 15 of the Code of Civil Procedure two conditions must be satisfied: (I) absence must be from residence: (2) if defendant is not found at his residence and there is no agent empowered to accept summons an enquiry has to be made to find out absentee defendant's adult male member residing with defendant and in process server's affidavit, these facts must be stated. Since process server concerned has not been examined nor service return of the summons been made exhibit, question whether aforesaid conditions stand satisfied or not does not arise for consideration. There is absolutely no evidence to show that Kasimuddin on whom the summons meant for opposite party defendant No. 20 was served, happens to be the male member of the opposite party's family and residing with him.

Osiruddin Mandal vs Azizur Rahman 39 DLR 403.

Order V rules 16 and 18-

Service of summons-When the lower appellate Court finds that the name of the clerk who received the summons is not distinct and the names and addresses of witnesses in whose presence the summons was served have not been noted in the original summons, that provides a strong ground for the court below to hold that the summons was not served. The procedure provided for serving summons is not to be whittled down by importing the concept of "substantial compliance" as done by the High Court Division.

Bangladesh vs Chand Mia & others 44 DLR (AD) 98.

Order V rule 17-

Service of summons, proof of-Summons served by process-server without noting the names and addresses of Mokabila witnesses in the service return Process-server appearing in Court as a witness-his evidence without examining the Mokabila witness not acceptable-It is obligatory upon the process-server to mention in his report the name and address of the person, if any, by whom the house in question was identified and in whose presence the copy of summons was affixed When service reports were devoid of these essential information, they were unacceptable. Mere personal appearance of the process-server as a witness in Court did not make the report acceptable.

Upendra Chandra Rishi vs Sujia Begum 42 DLR (AD) 285.

Order V rule 17-

Petitioner entered appearance in the suit by filing a vokalatnama and filed written objection in the injunction matter. Subsequently he did not file any written statement and ex parte decree was passed. In that view of the matter the petitioner's plea that summons was not served upon them is not tenable at all.

Jalaluddin and others vs Laily Begum and others 50 DLR (AD) 105.

Order V rule 17-

The plaintiff who obtained the ex parte decree is to prove the service of summons by producing the persons in whose presence the copies of summons was affixed.

Azizur Rahman vs Mariamunnessa and others 54 DLR 108.

Order V rules 17 and 19-

When the summons is returned unserved under rule 17, a duty is cast upon the Court under rule 19 to examine the process server.

Order V, rule 19 CPC enjoins a duty upon the court to examine the process-server where the summons is returned under rule 17, CPC and the return has not been verified by the affidavit of servicing officer. Rule 19 .also speaks that the court may make such further inquiry in the matter and shall either declare that the summons has been duly served or order such service as thinks fit.

In view of the provisions of rule 19 of Order V, CPC it can easily be held that where the summons is returned under rule 17 it is mandatory on the part of the Court to examine the process server on oath and to declare that the summons has been duly served. Unless these requirements of law are satisfied it cannot be held that the summons was duly served. From perusal of the record of the court below I am unable to find that those requirements of law have been fulfilled in this case. In that view of the matter, I hold that there being no service of summons on the petitioner the ex parte decree passed by the court below is liable to be set aside.

Nur Ahmed vs Mokter Ahmed 41 DLR 84.

Order V rules 17 and 19-

Procedure when the defendant refuses to accept service or he cannot be found and examination of the serving officer to be followed-has been stated.

Ratan Chandra Karmaker vs Afsar Ali 40 DLR 147.

Order V rules 17 and 19-

Process-server's duty regarding the non-acceptance of the summons-Rules 17 and 19 of Order V of the Code of Civil Procedure to be read togetherCourt's function to examine the process-server on oath under rule 17 stated in such cases.

Ratan Chandra Karmaker vs Afsar Ali 40 DLR 147.

Order V rules 17 and 19-

Provisions of rule 19 of Order V, CPC are mandatory.

Ratan Chandra Karmaker vs Afsar Ali 40 DLR 147.

Order V rules 17 and 19-

When neither the bailiff files an affidavit in support of his endorsement on the service return of summons nor does the Court examine him on oath when there is no such affidavit, the service is not valid. Any subsequent examination of the processserver as a witness to prove the service return will not cure the initial invalidity.

Ratan Chandra Karmaker vs Afsar Ali 40 DLR 147.

Order V rules 17 & 19-

Summons on several defendants were served by hanging under Order V rule 17 of the Code. It was therefore incumbent on the Court below to make an enquiry under Or V r 19 of the Code and record a distinct declaration of due service, if satisfied, or to order service afresh. 25 DLR 91 ref.

Shaif Ullah Patwary and others vs Jharna Dhara Chowdhury and another 47 DLR 307.

Order V rules 17, 19 & 19A-

When summon is returned under Rule 17 the Court has to examine the serving officer on oath touching his proceeding and to ascertain by enquiry in the matter as to whether summons has been duly served or not and make a declaration to that effect.

Sk Haider Ali vs Abdul Wahab Gazi and others 49 DLR 251.

Order V rules 19 and, 19A-

No definite witness to the delivery of summons as adduced in evidence by PW 2-Summons was not duly served upon the petitioner.

Taking into consideration these aspects of the statements of DW 2 and deposition of PW I and PW 2, I have no hesitation in holding that no summons was served upon the petitioner and it was shown to have been served by hanging falsely without there being any attempt to deliver the same to the petitioner. In this view of the matter, I cannot accept the finding of the learned court below that the summons was duly served upon the petitioner.

Nur Ahmed vs Mokter Ahmed 41 DLR 84.

Order V rule 19A-

Under Order V, rule 19A of the Code of Civil Procedure the declaration of the process server is an evidence of the fact as to the service of the summons upon the defendant. The report that the service was made on the identification of the Mokabila witnesses implies that the process server did not know the defendant and or his house. So, in absence of any statement by OPW 2 on the point of his identification, the recital as to the identification which is like other evidence remains uncorroborated and in the face of denial by the defendant there remains a genuine suspicion that the service was made, if at all, upon a wrong person.

Alhaj Abdul Aziz vs Kalipada Das 41 DLR 170.

Order V rule 19B(2) & Order XLI rule 21-

A summons sent by registered post and returned with the endorsement refused is prima facie evidence that the addressee had an opportunity to accept it and the service thus effected is a good and valid service.

Shahabuddin Ahmed vs Abdur Rab Molla & others 52 DLR 305.

Code of Civil Procedure, 1908 (Order VI)

Order VI rule I and Order XII rule 6-

Admission, ambit of-Decree on admissionWritten objection filed in an interlocutory matter would not be a part of the pleading of the parties in the suit but if there is an admission in the written objection it would be regarded as an admission. The expression "or otherwise" under rule 6 of Order. XII would empower the Court to see the admission made elsewhere in the proceeding during the trial and should not be confined only to written statement. The decree, as passed on admission made otherwise than in written statement, is in accordance with law and need not be interfered with in exercise of revisional jurisdiction.

A Elahee & Co vs MM Aziz 44 DLR 131.

Order VI rules I & 2 and Order VII rule I-

The purpose of pleadings is to pinpoint the matters of controversy between the contending parties for enabling them to meet their respective claims. If at the trial the plaintiff fails to prove some of his allegations, that does not necessarily mean that the suit shall fail. The fate of the suit depends on the overall evidence and materials on record.

Sonali Bank vs Hare Krishna Das and others 49 DLR 282.

Order VI rule 2-

It is the substance and not the form of the plaint which is to be looked and considered and Mufussil Court's pleadings are to be construed liberally.

Zamir Uddin Ahmed vs Jiaul Huq and others 49 DLR 622.

Order VI rule 2, Order XVIII rule 17-

The Code has given enabling power to the Court to recall a witness. All the evidence and documents under the possession of the plaintiff to be relied upon at the time of hearing of the suit need not be mentioned in the pleading.

Registrar (Deputy Secretary) vs Sahrab Jan and others 48 DLR 214.

Order VI rule 5-

Purpose of filing further and better statement is to elucidate the pleadings and not to amend the same by adding new claim or defence which was not in pleading.

Fatick Chandra Dey and others vs Dipok Kumar Dey and others 556.

Order VI rule 7-

The trial Court allowed the plaintiff to introduce a new story (in his deposition and by production of documents) without amending the plaint itself-Not permissible in law.

Ranjit Kumar Rakshit vs Sudhir Kumar Chowdhury 38 DLR 39.

Order VI rule 7-

New plea-The court will not allow either party to make any departure from the earlier pleadings set forth in the plaint or written statement.

Bangladesh vs Md Aslam 44 DLR89.

Order VI rule 7-

The departure in the evidence from the plaint has not been of such a dimension that the defendants were unfairly taken by surprise. Both the parties had all opportunities to lay before the court all their evidence respecting title and possession of the suit land. In such circumstances the operation of Order VI rule 7 of the Code will not come in.

Kochi Mia @ Khocha Mia vs Suruj Mia being dead his heirs Md Fazlur Rahman and others 51 DLR (AD) 57.

Order VI rules 14 & 17-

Defect or irregularity in the matter of signing the plaint and the verification to the plaint can be cured by amendment of the plaint.

Doon Valley Rice Limited vs MV Yue Yang and others 48 DLR 531.

Order VI rule 14 & Order XIX rule 1-

Companies are not exclusively governed by the provisions of Order XIX rule 1 in the matter of signature on plaint. They are also governed by the provisions of Order VI rule 14. A company has alternative choice. It can follow Order XIX rule 1 or Order VI rule 14. It cannot orally authorise a person to sign a plaint-it is governed by its Articles of Association in such matters. It is not condition of verification of plaint that it should be done by the holder of a power of attorney.

Anath Bandhu Guha & Sons Ltd vs Babu Sudhangshu Shekhar Halder 42 DLR (AD) 244.

Order VI rule 17-

Amendment of pleadings may not be allowed as would alter the nature of suit, etc-However in certain circumstances the court may allow an amendment in what is not generally done.

Md Nurul Islam vs Abdul Malek 38 DLR (AD) 115.

Order VI rule 17-

0riginal prayer in the plaint was for declaration of the partition deed as null and void and fraudulent. By an amendment prayer later on it sought for cancellation of the deed as being fraudulent and void.

Held: Amendment prayer should be allowed as cancellation of the document is a natural sequence when it is found to be product of fraud-Question of limitation not relevant.

Jarina Khatun vs Pulin Chandra Das 37 DLR (AD) 67.

Order VI rule 17-

Question arose as to whether amendment of pre-emption application introducing a new claim for pre-emption on the basis of contiguous ownership of the disputed lands would materially alter the nature and character of the proceeding, particularly when it is barred by limitation.

Held: As a rule no amendment is allowed where its effect will take away any legal right, which might have accrued by lapse of time. Here the transferee has failed to show what legal right had accrued to him which will be washed away by allowing the amendment-Then again as a rule the Court refused an amendment if the amendment introduces a totally new and inconsistent case which may require further evidence to be adduced by the opponent-In this case no legal right accrued to the respondent except the right of rateable pre-emption-The amendment is allowedand it will relate back to the date of the institution of the pre-emption case.

Amendment pleadings under Order VI, rule 17 CPC-Special limitation prescribed under section 96 of the State Acquisition and Tenancy Act-The question of limitation may arise in two cases (i) whether the claim to be included was barred on the date of the institution of the suit, (ii) whether the claim is barred on the date of the prayer for amendment-In this case the amendment will relate back to the date of the institution of the case.

Sree Shushil Ranjan Dutta vs Al-Haj Moulvi Idris Mia 42 DLR (AD) I I 0.

Order VI rule 17-

Amendment of pleading at the appellate stage in the interest of justice and for determination of the real controversy between the parties permissible.

Bimal Kanti Biswas vs Custodian of Enemy Property 42 DLR 227.

Order VI rule 17-

Amendment of pleading -Mere change in the relief does not change the nature of the suit.

Nuruddin Ahmed vs Zafarullah Siddique 42 DLR 246.

Order VI rule 17-

Amendment of written statement-The proposed amendment will not change the fundamental character of the defence case. The Court fell into error of law occasioning failure of justice in rejecting the application for amendment.

Md Naiyum vs Rahima Khatun 42 DLR 523.

Order VI rule 17-

Courts are always inclined to allow amendment so as to enable the parties to bring all points relating to a dispute between the parties before the Court in order to avoid multiplicity of proceedings.

Sahimon Bew al vs Safiruddin Mohammad 38 DLR 265.

Order VI rule 17-

Amendment of plaint can be made 'at any stage of the proceeding' which includes proceeding even at the appellate stage.

MA Jahangir vs Abdul Malek 41 DLR 389.

Order VI rule 17-

Merely because an amendment is new from what has been stated in the plaint, it cannot be a ground for refusal of amendment of the plaint unless it changes the character of the suit.

MA Jahangir vs Abdul Malek 41 DLR 389.

Order VI rule 17-

Amendment of the election petition made a complete change in the nature and character of the election petition.

Zulfiquar Ali Bhutto vs Bangladesh-11 DLR 379.

Order VI rule 17-

Election Tribunal has no power to allow amendment of the election petition so as to relate back to the date of filing of the election petition. Thus although the Election Tribunal has the limited jurisdiction to allow amendment of the election petition, it has no power to allow any amendment, so as to relate back to the date of filing of the election petition. It is so because subrule ( 1) of Rule 44 prescribed the limitation of 30 days next after the publication of the result in the official Gazette to file an election petition and sub-rule (5) specifically provides that an election petition shall set forth the ground on which the petition is fixed and the relief sought. In other words, the ground for the election petition and the relief sought must be stated within the period of limitation.

Zulfiquar Ali Bhutto vs Bangladesh 41 DLR 379.

Order VI rule 17-

Amendment of plaint allowed by the trial Court as a matter of course and without satisfying itself whether the same is necessary for determining the controversy between the parties is to be discarded.

Ismail Mohammad vs Motasim Ali Chowdhury 45 DLR 123.

Order VI rule 17-

Amendment of pleadings -Plaintiff filed an application for amendment of the plaint that the defendant entered into the property in 1956. The application ought to have been allowed as it could have been disposed of on the available evidence on record and would not have prejudiced the defendant in any manner.

Abdur Rabbani vs Aminul Haque Sowdagar 43 DLR (AD) 19.

Order VI rule 17-

The defendant traces his possession in the property since 1948. Documentary evidence of payment of rent starts from 1951. With the passage of time, question of limitation and accrual of vested rights step in. The Court correctly rejected the application for amendment of plaint.

Abdur Rabbani vs Aminul Haque Sowdagar 43 DLR (AD) 19.

Order VI rule 17-

Amendment of plaintExtent of amendment that can be allowed-by the proposed amendment the plaintiff seeks to introduce a new case of acquisition of his title to the suit property by altering his earlier pleading. A plaintiff can set up as many roots of title as possible and they may be even conflicting and inconsistent.

Thus the major ground as aforesaid of the trial Court for refusing the amendment is not tenable in law. So also the other two minor grounds as the amendment was proposed before the trial and its obstruction to normal rule of disposal can be compensated by costs to the other side. Plaintiff's application dated 2.8.92 seeking amendment of the plaint is allowed on condition that the plaintiff should pay a cost of Tk. 2,000.00 to the contesting defendants within two months from the date of receipt of this order by the trial Court, in default the application shall stand rejected.

Samarendra Nath Roy Chowdhury vs Abdul Jabbar 46 DLR 273.

Order VI rule 17-

Amendment of pleading-Introduction of a relevant fact by way of amendment for determining the real question in controversy should not be refused.

Moyezuddin Mondal vs Bena Rani Das 45 DLR 154.

Order VI rule 17-

Amendment of plaintPlea of res judicata- When in a previous suit a party of a subsequent suit was impleaded in his representative capacity as an heir of the original tenant and it was not open to him to raise any defence in his personal capacity he can subsequently raise objection and his hereditary nature in the previous suit does not operate as res judicata. Amendment of the plaint in the subsequent suit to the effect that the decree made in the former suit arising out of revenue sale, wherein the plaintiffs were impleaded in personal capacity, was null and void is proper and just for effective adjudication of issues between the parties.

Kutub Uddin Bhuiyan vs Sakhina Bibi 43 DLR 601.

Order VI rule 17-

Retum of plaint in a matter relating to persons in the service of the Republic-Amendment replacing a cause of action, after it had ceased to exist, by a new cause of action so as to change the nature of the suit and the cause of action will not be allowed, and, if allowed, cannot relate back to the date of filing the suit. Furthermore, the jurisdiction of the civil Court having been vested in the Administrative Tribunal by the promulgation of special statute the jurisdiction of civil Court in respect of Bank employees had been ousted, and in that view of the matter, the plaint was rightly returned by the civil Court for presentation to the proper Tribunal having jurisdiction.

Mansur Ali vs Janata Bank 43 DLR 394.

Order VI rule 17-

Amendment of plaint—Where the plaintiff institutes a suit for permanent injunction and obtains temporary injunction but subsequently he is dispossessed from the suit property, and he then merely seeks amendment of the plaint for restoration of the property under Order XXXIX, rule 2 CPC such amendment cannot be allowed without a prayer for declaration of title and recovery of possession, in as much as, the same will change the nature and character of the suit.

RAJUK vs Mir Nousher Ali 46 DLR 134.

Order VI rule 17-

Amendment-When opportunity for additional written statement not necessary-The amendment was of formal nature changing the name of the plaintiff bank following its de-nationalisation. Normally when an application for amendment of plaint is allowed, the defendant is given a chance to file additional written statement but the amendment being of formal nature the judge has committed no error of law in not giving opportunity for filing additional written statement.

Mozammel Haque vs Uttara Bank 43 DLR 498.

Order VI rule 17-

Amendment replacing a cause of action, after it had ceased to exist, by a new cause of action so as to change the nature of the suit and the cause of action will not be allowed, and if allowed, cannot relate back to the date of filing the suit. Furthermore, the jurisdiction of the civil Court having been vested in the Administrative Tribunal by the promulgation of special statute the jurisdiction of civil Court in respect of Bank employees has been ousted, and in that view of the matter, the plaint was rightly returned by the civil Court for presentation to the proper Tribunal having jurisdiction.

Monsur Ali vs Janata Bank 43 DLR394.

Order VI rule 17-

In the amendment certain specific boundary has been incorporated keeping the other averments of the plaint intact. Such amendment has not changed the character of the plaint.

JN University vs Mujibur Rahman 43 DLR 282.

Order VI rule 17-

Prayer for amendment of pre-emption application by way of addition of parties after the pre-emptors were earlier allowed exemption from such addition. The Assistant Judge does not exercise his discretion in a judicial manner by refusing addition of the same parties, when the pre-emptor appears to have averred that on a wrong advice they prayed for exemption.

Mojibur Rahman Sarker vs Shafiqul Islam 43 DLR 313.

Order VI rule 17-

Amendment of a plaint and amendment of a written statement are not governed by exactly the same principle. The defendant would not be allowed to introduce an alternative and completely different kind of defence which will have the effect of introducing a new controversy between the parties.

Abul Kalam Azad vs Sunhar Ali 46 DLR (AD) 130.

Order VI rule 17-

Before allowing amendment or alteration of the pleading the Court must come to a finding that such amendment or alteration is necessary for determining the real question in controversy. The order of the trial Court passed without such finding suffers from legal infirmity and the matter is sent back for rehearing.

Sri Kirlish Chandra Dev vs Begum Sufia Akhtar 46 DLR 313.

Order VI rule 17-

Amendment of plaint - When it means no substitution of one cause of action for another- The impugned transfer of shares of the plaintiff having taken place during the period of insanity of the plaintiff, it is necessary to dispose of the same within the framework of the suit for declaration. Insanity being the foundation of the suit plaintiff can legitimately combine in one suit all the alleged illegalities committed by the appellant in the matter of transfer of the shares in question and other properties. This is not substitution of one cause of action for another, but a consolidation of all wrongs allegedly done to the plaintiff.

Afruz Miah vs Al-haj Md Siraj Miah 43 DLR (AD) 89.

Order VI rule 17-

Amendment of plaint - Conflict of decisions-If the plaintiff had to. file separate suits challenging different alienations during the period of his insanity, it will involve proving insanity in each suit which might lead to conflict of decisions. This is least desirable.

Afruz Miah vs Al-haj Md Siraj Miah 43 DLR (AD) 89.

Order VI rule 17-

Amendment of plaint-A corollary to addition of party-the plain tiff added 3 other defendants as parties after filing of the suit and prayed for relief The addition of parties is corollary to the amendment sought for. It in no way changes the complexion of the suit. Afruz Miah vs Al-haj Md Siraj Miah 43 DLR (AD) 89.

Order VI rule 17-

Amendment of plaint - Delay- Appellants having not filed written statement in the suit the delay of 10 months in seeking amendment after the knowledge of transfer of the shares in question is not material as it will not prejudice them in any way.

Afruz Miah vs Al-haj Md Siraj Miah 43 DLR (AD) 89.

Order VI rule 17-

The proposed amendment would settle the question whether during the pendency of the suit the plaintiff was dispossessed or not. This will end all pending controversies between the parties and will not amount to a change in the nature and character of the suit.

Shahajadpur Central Co-operative Bank Ltd vs Majibur Rahman and others 50 DLR (AD) 86.

Order VI rule 17-

In the appellate Court parties filed a solenama on the basis of which the suit was remitted to the trial Court for the said purpose-The plaintiffs could not be permitted to open the new issue (by amendment) for decision in the suit after having already entered into compromise admitting the claim of the appellants.

Sunil Chandra Mondal and others vs Narayan Chandra Shil & others 50 DLR (AD) 148.

Order VI rule 17-

Instead of furthering the cause of justice by allowing the plaintiff-appellant a full opportunity to place his case against all the parties involved by stating all the facts that he wants to allege against them and by seeking all possible remedies against them, the High Court Division has given a queer look at the plaintiff and has found him lacking in bonafides in whatever he does. After all, he is seeking full justice from a Court oflaw and he wanted to bring all the parties involved in the original and subsequent transactions. Why should anyone find a malafide motive in trying to do just that, is beyond our comprehension.

Khaledur Reza Chowdhury (Md) vs Saleha Begum and others 48 DLR (AD) 209.

Order VI rule 17-

The proposed amendment introducing new facts and subsequent cause of action different from those made in the plaint if allowed condoning the delay will change the nature and character of the suit. Amendment was therefore rightly refused.

Abdul Wadud Contractor and another vs Nazir Ahmed and others 48 DLR (AD) 120.

Order VI rule 17-

In a suit for ejectment of licensees the prayer for declaration of plaintiffs title is rather necessary to constitute the suit in a complete legal form and for final adjudication of the matter in dispute. The amendment for such a declaration is merely an additional relief in proper perspective and necessary for appropriate relief.

Syed Monirul Huda Chowdhury vs Fouzia Chowdhury and others 47 DLR JO.

Order VI rule 17-

Court can take into account subsequent event necessitating amendment by· addition of new relief that may be allowed to do complete justice.

Nazrul Islam Majumder (Md) vs Tahamina Akhtar alias Nahid and another 47 DLR 235.

Order VI rule 17-

Mere delay in filing the application for amendment of the plaint cannot be a ground to hold that the application for · amendment is malafide and the applicant is not entitled to the relief prayed for.

Abdus Salam vs Karban Ali and another 48 DLR 372.

Order VI rule 17-

The Court is directed to hear afresh the amendment application and the objection thereto as the impugned order allowing amendment of plaint does not show it was done on proper consideration of the same.

Begum and Company Ltd vs Rupali Bank and others 48 DLR 23.

Order VI rule 17-

Once an amendment of the plaint is allowed the amendment will relate back to the date of the institution of the suit.

Doon Valley Rice Limited vs MV Yue Yang and others 48 DLR 531.

Order VI rule 17-

Law does not impose any bar on the defendant to claim as many roots to his title as he wants and they may even be conflicting to each other cannot be grounds for rejecting an application for amendment.

Tohfa Khatun and others vs Moulavi Mukhilisur Rahman and others 49 DLR 315.

Order VI rule 17-

A consideration whether an amendment would have the effect of getting out of an admission of a party in his pleadings to the prejudice of the contesting party is absolutely irrelevant.

Tohfa Khatun and others vs Moulavi Mukhilisur Rahman and others 49 DLR 315.

Order VI rule 17-

Amendment of plaint should not be refused unless {a) the plaintiffs suit is wholly displaced by amendment {b) the amendment takes away right accrued by lapse of time { c) the amendment introduces a different, new and inconsistent case and the amendment converts the suit into a different and inconsistent character.

Norendra Chandra Dash and others vs Md Solaiman Chowdhury & ors 51 DLR 81.

Order VI rule 17-

A party is expected to raise any dispute of the nature in the appeal instead of rushing to this court thereby delaying disposal of the election petition.

Nazem Uddin vs Election Tribunal and others 52 DLR 189.

Order VI rule 17-

By amendment for the 3rd time the plaintiff sought to show his purchased land to be 0.1125 acres. But there was no necessity of allowing such amendment to resolve whether the defendant had dispossessed the plaintiff from the suit land, which the plaintiff by way of 2nd amendment claimed to be 0.03 acres out of his purchased land.

Motasim Ali Chowdhury vs Md Ismail 53 DLR (AD) 74.

Order VI rule 17-

Amendment only in the prayer portion of the plaint following direction for taking fresh evidence in order to prove 'Salishnama', the basis of plaintiff's clai_m calls for no interference.

Abdul Khaleque Gazi and others vs Abdul Aziz Mollah and others 53 DLR (AD) 82.

Order VI rule 17-

If the application is found to be fit to allow the plaintiffs to add the prayer for confirmation of possession on payment of proper court fees then it can also allow the defendants to file additional written statement. There may then be a necessity for additional evidence to be adduced by the parties for determining the real question in controversy.

Jarina Khatun & others vs Gani Howlader & others 53 DLR 53.

Order VI rule 17-

If the proposed amendment is allowed, the amendment will go back to the time of institution of the suit, thereby, giving a new life to the time-barred claim of the plaintiff, depriving the opposite party of a valuable legal right accrued to them by lapse of time. Such a course is clearly unjust.

Gold Topps Co Hong Kong and others vs TCB and another 53 DLR 280.

Order VI rule 17-

An application for amendment of the plaint should not be rejected on the ground that the preliminary decree has already been drawn up, and that re-opening of the suit and adducing further evidence will cause inordinate delay in disposal and hardship to the parties.

Hanif Ali (Md) vs Hajera Khatun and others 55 DLR 17.

Order VI rule 17-

Unnecessary parties and prayers may be struck out by the court from an election petition by an amendment.

Idrish Ali Bhuiyan (Md) vs Dr Alauddin Ahmed and ors 55 DLR 19.

Order VI rule 17-

An amendment may be just but cannot be allowed if it is not necessary for decision in the suit.

Bangladesh Shipping Lines Ltd vs Commissioner of Customs, Chittagong and others 55 DLR 166.

Order VI rule 17-

Amendment of plaint seeking to convert the suit of one character into another and to substitute one distinct cause of action into another depriving the other party of his right accrued to him by lapse of time cannot be allowed.

Government of Bangladesh and another vs Shafi A Chowdhury and another 55 DLR 228.

Order VI rule 17 and section 151-

Amendment of pleadings-Introduction of alternative defence on the ground of hardship-A completely different defence-Contract even if subsisting can still be avoided on this ground.

It is found that this amendment has been introduced so that in the event of the court's finding that the contract is subsisting, the defendant-petitioner can still avoid it on the ground of hardship. In other words, the defendant-petitioner is now seeking to introduce an alternative defence. This defence is now of a completely different kind, both in terms of content and form. It will have the effect of introducing a new controversy between the parties, a controversy which did not exist before. Defendant-petitioner is not precluded from raising alternative defence-introduction of alternative defence at this stage of the suit will compel the plaintiff to arrange production of evidence in rebuttal of a new defence.

The petitioner was not precluded from raising a new alternative defence, provided it did not affect the parties in any appreciable manner. If the amendment was sought to be made before the positive hearing of the suit it could not have been said that the parties were affected thereby but in the facts and circumstances of this case it can legitimately be argued by the plaintiff-opposite party that the introduction of an alternative defence at this stage of the suit will be highly prejudicial to him, for he will also have to arrange production of evidence in rebuttal of a new defence.

Major (Retd) M Afsaruddin vs Kamal Rahman 4 I DLR I 90.

Order VI rule 17 and Order VII rule 10-

The conversion of the suit from one file to another does not involve a change in the nature and character of the suit so as to bar amendment of the plaint. The court had ample jurisdiction to allow the amendment and then to return the amended plaint to the plaintiff for presentation to the proper court.

Nazrul Islam vs Jahanara Hasan 46 DLR I06.

Order VI rule 17 & Order XXII rule 9-

The provisions for amendment of pleading has no bearing in the matter of substitution of legal representative of a deceased party and it is not to be used as subsidiary provision of the Order XXII, Civil Procedure Code as a device to overcome the effect of bar of abatement in the suit.

Saleha Khatun and others vs Fetema Hajura and others 52 DLR 457.

Code of Civil Procedure, 1908 (Order VII)

Order VII rule 1(c)-

Cause of action-Not only a date for a cause of action is to be given in the plaint but also the facts constituting the cause of action for the plaintiff against the defendant are necessarily to be mentioned in the plaint.

Ayub (Md) vs Sonali Bank and others 47 DLR I63.

Order VII rule 1(c)-

The question of fresh threat from the heirs of defendant does not arise as the suit was filed at a time when there was definite cause of action and as such the Court· was not correct in holding that there was no continuing threat to file the suit.

Saitan Bibi and others vs Chairna Bewa and others 5I DLR (AD) 28.

Order VII rule 1(e)-

Cause of action-What it is-The incidence of cause of action must be antecedent to the bringing of the suit at a time when the right to sue arose for the first time. It consists of the entire set of facts which gives rise to a legal action and is to be provided to entitle the plaintiff to succeed in the suit. It has little relation either to the defence to be taken by the defendant or the nature of relief prayed for.

Surat Sarder and others vs Aftal Hossain and others 49 DLR (AD) 99.

Order VII rule l(e), Order VIII rule 3 & Order XIV rule 1-

Cause title forms very much a part of the application (for pre-emption). Statement made therein should be denied specifically or by implication.

What is stated in the cause title is not an averment and as a result the pre-emption application should fail, even then the revisional application is liable to be rejected because of the decision in the case of Mr. Matitur Rahman vs Md Iman Ali@ Md Iman Miah and others I981 BLD (AD) 280 wherein it has been held, that mere omission to making an assertion in respect of ceiling of land in the application by the preemptors or to adduce evidence to this effect in the absence of any averment to the contrary, will not render the application liable to be dismissed and an omission to record a finding to this affect in such a circumstance cannot be a ground for dismissal of the pre-emption case.

Idris Mia vs Promode Ranjan Das 45 DLR 126.

Order VII rule 3-

Failure to give specification of suit land-the plaintiffs having failed to comply with the mandatory requirement of law in giving description sufficient to identify the suit land, they are not entitled to any decree even if they succeed in proving their title.

Noor Mohammad Khan vs Bangladesh 42 DLR 434.

Order VII rule 3-

Identification of the suit property-The lower appellate Court on scrutiny of plaint schedules came to the finding that the description of the suit land given by boundaries is quite identifiable and not vague and thereby rightly revised the trial Court's finding on identification. The suit being one for declaration of· title only and there being no prayer for confirmation of possession or recovery of possession, the point of alleged vagueness as to the description ofthe suit land was not so material for adjudication.

Bangladesh vs Dewan Obaidur Reza Chowdhury 43 DLR 551.

Order VII rule 7-

The Code permits the grant of such general or other relief as the plaintiff is entitled to get upon the evidence even if the plaint does not contain a prayer for the relief.

Commander (Rtd) AA Chowdhury vs AKM Imam Hossain and others 49 DLR 23.

Order VII rule 7-

In the name of granting general or other relief the Court cannot and would not mount any surprise on the defendant and make him liable for something which does not arise out of the plaint and, as such, he had no occasion to answer the same. This is merely an extension of the principle of natural justice.

Hefzur Rahman vs Shamsun Nahar Begum 51 DLR (AD) 172.

Order VII rule 7-

It is absolutely the domain and the discretion of the Court to grant the relief sought for or to grant any other general or other relief that may be thought fit and proper.

Maico Jute and Bag Corporation vs Bangladesh Jute Mills Corporation and others 55 DLR (AD) 23.

Order VII rule 7-

When PW 1 admitted that the plaintiff was dispossessed from a portion of the suit property it was a must for him to incorporate the fact and add necessary prayer by way of amendment of the plaint specifying the area dispossessed but this having not been done, from where there was no scope to give relief to the plaintiff.

Bangladesh Sugar and Food Industries Corporation vs Md Kashem and others 55 DLR 350.

Order VII rule 10-

Nazrul Islam and another vs Jahanara Hassan and another 46 DLR 106.

Order VII rule 10-

Retum of plaint in a matter relating to persons in the service of the Republic-Amendment replacing a cause of action, after it had ceased to exist, by a new cause of action so as to change the nature of the suit and the cause of action will not be allowed, and if allowed, cannot relate back to the date of filing the suit. Furthermore, the jurisdiction of the civil Court having been vested in the Administrative Tribunal by the promulgation of special statute the jurisdiction of civil Court in respect of bank employees has been ousted, and in that view of the matter, the plaint was rightly returned by the civil Court for presentation to the proper Tribunal having jurisdiction.

Mansur Ali vs Janata Bank 43 DLR 394.

Order VII rule 10-

Locus standi to invoke Admiralty jurisdiction-Only the owner or consignee or assignee of the Bill of Lading of any goods may claim damages against the owner, master or crew of the ship. The plaintiff insurer having satisfied neither of these descriptions they have no locus standi to invoke the jurisdiction of the Admiralty Court.

Sadharan Bima Corporation vs Bangladesh Shipping Corporation 43 DLR 322.

Order VII rule 10-

Suit under Admiralty jurisdiction when not maintainable-Since the plaintiff is neither the owner nor consignee nor assignee of any Bill of Lading of any goods and since no damage was done to any goods of the plaintiff on board by the defendant, the plaintiffinsurer has no locus standi to invoke the jurisdiction of the Admiralty Court under section 6 of the Admiralty Court Act. The plaint be returned to the plaintiff with liberty to file it in appropriate court if not otherwise barred.

Sadharan Bima Corporation vs Bangladesh Shipping Corporation 43 DLR 548.

Section VII rule 10-

Jurisdiction to entertain suit-A corporation can be said to carry on business at the place where it has a branch only in respect of a cause of action which arises wholly or in part at such place. If no part of the cause of action accrues at the place of the branch officer the mere fact of the corporation having a branch office at the place will not give the court jurisdiction to entertain a suit.

Khondaker Mahtabuddin Ahmed, vs Matin Tea and Trading Company 46 DLR (AD) 92.

Order VII rule 10-

Section 7(XI) of the Court-fees Act provides an objective standard for valuation of a suit for eviction of a monthly tenant by the landlord. In such a case, the subjective satisfaction of the plaintiff is of no avail.

Didar Ali and others vs NaziurRahman 50 DLR 451.

Order VII rule 10 & Order XX rule 5-

The defendants at the earliest opportunity raised the question of undervaluation of the suit and, as such; a specific issue to that effect ought to have been framed.

Abdus Samad and others vs Md Gafur and others 56 DLR 297.

Order VII rules 10 and 11-

In a case where the court finds that it has no territorial jurisdiction to entertain the suit, the plaint need not be rejected, it should be returned for presentation before the proper court.

KM Sarwar Hossain vs Mosharraf Hossain and others 45 DLR 562.

Order VII rules 10 and 11(b)(c)-

Supreme Court of 1774 of Bengal-Causes arising out of a contract of marine insurance would come under the provisions of Admiralty Act of 1861 for this court to have jurisdiction.

Bengal Liner Ltd, Dhaka vs Sadharan Bima Corporation 42 DLR 281.

Order VII rules 10(1) and 11-

The plaint is to be rejected as the application is barred under Order VII.

Habibur Rahman vs Election Commission 40 DLR 459.

Order VII rule 11-

In view of allegation of malafide, rejection of plaint improper. The plaintiffs alleged that Madrasah had sufficient land for the purpose of. the extension of the Madrasah. He alleged in his plaint that the defendant initiated the requisition proceeding out of grudge and ill motive and the requisitioning authority had requisitioned the suit property without inquiry -. The Trial Court had recorded the finding that there was no inquiry before requisitioning the property in question. On the fact of such finding it is beyond comprehension as to how the plaint itself was rejected under Order VII, rule 11 CPC.

Nur Muhammad vs Mainuddin 39 DLR (AD) 1.

Order VII rule 11-

Plaintiff alleges, that requisition has been made for collateral purpose-Rejection of the plaint in view of such allegations not proper. The main theme in the plaint is that the order of requisition was passed for a collateral purpose and thus maia fide in nature. It may be that ultimately the plaintiffs cannot prove mala fide as alleged in suit but the plaint cannot be rejected outright under Order VII, rule 11 CPC upon entering into the question at issue on the basis of facts to be proved by evidence.

Nur Muhammad vs Mainuddin 39 DLR (AD) 1.

Order VII rule 11-

A plaint will not be rejected unless it shows want of cause of action and is not barred by any law.

Shahzadpur Central Co-operative Multipurpose Society Ltd vs Md Abdul Bari 37 DLR 178.

Order VII rule 11-

Rejection of plaint without recording evidence and without considering the facts that ought to come out after taking evidence not sustainable. The suit was filed on the basis of a loss of contingent right that the plaintiff, an alleged promoter, was left out in the formation of the proposed Bank-Such a promoter has always a cause of action for filing the suit.

National Bank Ltd vs Haroon Malik & others 42 DLR 103.

Order VII rule 11-

Bar of MLR and res judicata-The judgment by the Summary Military Court in the case being without jurisdiction the rejection of plaint on plea of earlier trial by such a court is not sustainable.

Meher Ali vs AK Murshid 42 DLR 357.

Order VII rule 11-

'The plaint alone (and not the application of the defendant) should be considered for arriving at a decision whether rejection of the plaint under Order VII, rule 11 of the Code of Civil Procedure merits or not. In so doing, the Court must apply its mind to the case of the plaintiff as set out in the body of the plaint as a whole assuming all the averments made therein to be true in the manner and form without taking into consideration the pleadings of the defendant.

Abul Hassnat vs Ershad Ali Beg 41 DLR 244.

Order VII rule 11-

There is no legal bar for a defendant to pray for rejection of the plaint and no bar to. the court disposing of such a prayer before filing of the written statement. The learned Assistant Judge has thus fallen into an error in finding otherwise.

Mostafa Kamal vs BD Habibullah 41 DLR 197.

Order VII rule 11-

ANM Toufiq vs Janata Bank 42 DLR 439.

Order VII rule 11-

Completion of registration is a mere procedural step .. To reject a petition for pre-emption at the initial stage on the ground of non-registration of the document before filing of the petition would cause unnecessary hardship. By deferring the decision on the point of pre-maturity of the pre-emption petition till final hearing of the case itself the trial Court committed no error of law.

Abdul Muhaimin Khan vs Bashiruddin 45 DLR 382.

Order VII rule 11-

Respondents in a civil suit alleged that they did not nominate any representative but the Chairman concerned out of grudge brought two of his men and showed them being nominated by the respondents in Village Court-Appellant (Defendant) proceeded for rejection of the plaint in the face of these allegations-Plaint in civil suit, cannot be rejected- To decide the truth of the matter evidence is necessary which can be available only in course of trial of the suit which is prima facie maintainable.

Kazi Mobarak Ali vs Mohammad Yeasin Mazumder 43 DLR (AD) 60.

Order VII rule 11-

Rejection of plaint-At what stage it can be done- There is no hard and fast rule as to when and at what stage a plaint can be rejected. It all depends upon the facts and circumstances of each case.

Jobeda Khatun vs Momtaz Begum 45 DLR (AD) 31.

Order VII rule 11-

Rejection of plaintThe plaintiff made statement in the plaint admitting the possession of a Company in the suit land but did not make the Company a defendant in the suit-The company having not been impleaded and no prayer having been made for recovery of possession of the suit land the Courts below have committed no illegality in rejecting the plaint.

Khandakar Amirul Islam vs Khandakar Amanullah 44 DLR 514.

Order VII rule 11-

After having exhausted all procedures under the Public Demands Recovery Act which is a special law the plaintiffs are precluded from coming to the civil Court. The instant suits are therefore barred by law on the face of the plaint themselves.

Marida Begum vs Md Hasan 43 DLR 242.

Order VII rule 11-

Fresh suit-Same cause of action-Since two suits were filed one after another upon the same cause of action, the later suit ought to have been stayed. The later suit having been brought before the dismissal of the Title Suit No. 210 of 1981 the bar of Or. IX rule 9 has no manner of application in the present case.

Hajee Abdul Latif vs Abdul Huq 44 DLR 601.

Order VII rule 11-

Jurisdictions-When the Court rejects or refuses to reject a plaint it does so in exercise of the jurisdiction vested in it. Even where clause ( d) of Or. VII r. 11 of the Code is invoked the court is entitled to examine whether the suit is barred by law.

Guiness Peat (Trading) Limited vs Md Fazlur Rahman 44 DLR (AD) 242.

Order VII rule 11-

The plea of implied bar should ordinarily be decided on evidence unless the facts disclosed in the plaint clearly prove that the suit was not maintainable. A resort to section 151 of the Code may be made in an exceptional case.

Guiness Peat (Trading) Limited vs Md Fazlur Rahman 44 DLR (AD) 242.

Order VII rule 11-

In an application for rejection of the plaint on the ground of nondisclosure of cause of action the court need not dissect the plaintiffs case part by part, if a part of the cause of action arises within its jurisdiction.

Guiness Peat (Trading) Limited vs Md Fazlur Rahman 44 DLR (AD) 242.

Order VII rule 11-

Madina Vegetable and Oil Refinery Industries (Private) Limited vs MT Dolore's 45 DLR 740.

Order VII rule 11-

Suit for declaration of ex parte decree fraudulent-Scope of such a suit-Cause of action to file and maintain such suit-falsity of claim cannot be a ground for setting aside an ex parte decree. Only when the plaintiff challenges an ex parte decree on the ground of fraudulent suppression of summons to deprive him of the opportunity of contesting the false claim in such a suit and the plaintiff can establish such allegation then such an ex parte decree can be set aside as fraudulent. The plaintiff having purchased the suit property during the pendency of the suit which was decreed ex parte the impugned decree is binding on him. They have no cause of action for the suit.

Haji Md Ishaque and others vs Rupali Bank 43 DLR 621.

Order VII rule 11-

The Court is not required to look into maintainability of the suit at the time of hearing of injunction matter. Maintainability of the suit is to be decided after filing of the written statement and framing of any issue on such point.

Nasir Miah, Malik Nasir Soap Factory vs Md Anwar Hossain, Executive Officer, Commander Soap Factory Ltd 48 DLR 28.

Order VII rule 11-

There is no legal scope to reject the plaint unless the plaint itself shows the want of cause of action for the suit or the suit being barred by any law.

Abul Masud Khan vs Khan Mohammad Abdullah Rahmatullah 47 DLR 143.

Order VII rule 11-

When the petitioners failed to negative the findings of the High Court Division against their plea of malafide, the petition against maintaining the order of rejection of plaint is dismissed.

WB Industrial Corporation Ltd and others vs Deen Mohammad Rana and another 48 DLR (AD) 50.

Order VII rule 11-

The phrase "equity and good conscience" are not in Order VII, rule 11 of the Code of Civil Procedure and as such the learned Single Judge wrongly imported this concept in the section which he was not permitted to do. The Judgment of the learned Single Judge suffers from irrelevant and rambling exercises bereft of legal acumen and hence the same is set aside.

Irfan Sayed (Md) vs Mrs Rukshana Matin and others 48 DLR (AD) 134.

Order VII rule 11-

The question of limitation in a suit is a mixed question of law and fact which can be decided only at the trial on taking evidence. In view of the reliefs prayed in the suit, the plaint cannot be rejected.

Shahabuddin (Md) & others vs Habibur Rahman and others 50 DLR (AD) 99.

Order VII rule 11-

The plaint could be rejected only when the court comes to the conclusion that even if all the averments made in the plaint are taken to be true still then the plaintiff would not be entitled to any relief at all.

Mohsena Begum vs Abdus Sattar 50 DLR 29.

Order VII rule 11-

Court may look into the averments made in the plaint and cannot go beyond the same to find whether plaint is liable to be rejected or not.

Eastern Bank Ltd. vs Subordinate Judge and another 49 DLR 531.

Order VII rule 11-

In deciding the question as to whether the plaint should be rejected the Court is required to consider only the plaint assuming all the averments made therein to be correct, without taking into consideration the possible defence plea.

Nurunnessa and others vs Mohibuddin Chowdhury and others 49 DLR 234.

Order VII rule 11-

In an application under Order VII, rule 11 of the Code the statement in the plaint has to be looked into to determine ifthe suit is barredby any law. But under Article 34(5) it is not the statement in the plaint but the reliefs claimed in the suit which will determine whether the suit is entertainable or not.

Bangladesh Shilpa Rin Sangstha vs Rahman Textile Mills Ltd and others 51 DLR (AD) 221.

Order VII rule 11-

The defendant-appellant need not have filed applications under Order VII, rule 11, Code of Civil Procedure. It could have maintained applications under Article 34(5) of President's Order No. 128 of972, not for rejection of the plaint, but for not entertaining the suits.

Bangladesh Shilpa Rin Sangstha vs Rahman Textile Mills Ltd and others 51 DLR (AD) 221.

Order VII rule 11-

In exercising this power the Court can look into the statements in the plaint alone. It cannot consider any fact stated in the written statement or any document produced by the defendant.

Khurshid Miah and another 52 DLR 614.

Order VII rule 11-

The petitioner having specifically raised the issue that liabilities of Group-B share holders are limited to extent of the shares .as subscribed by them and when averments made in the plaint show that the plaintiffs demanded Taka 17,39,380.70 from Group-B share holding, being 35% of the loss of Taka 52,70,802.00 suffered by the company, the plaint disclosed no cause of action for filing suit and the Subordinate Judge committed an error of law or justice in not rejecting the plaint.

Tanveerul Haque vs Unistar Shipping Limited and ors 52 DLR 215.

Order VII rule 11-

The Court while deciding application about rejection of plaint is not permitted in law to travel beyond the averments made in the plaint.

Abul Khair (Md) vs Pubali Bank Ltd and another 53 DLR (AD) 62.

Order VII rule 11-

Against the dismissal options were open to the plaintiff either to sue in a civil Court or to move in writ under Article 102 of the Constitution. He opted to sue in a civil Court. The decisions of the Courts below setting aside the order of returning the plaint therefore do not call for interference.

Sonali Bank and others vs Md Jalaluddin and another 53 DLR 48.

Order VII rule 11-

There is no hard and fast rule when an application for rejection of plaint is to be filed but ends of justice demands that it must be filed at the earliest opportunity.

Kazi (Md) Shahajan and another vs Md Khalilur Rahman Madbar and others 54 DLR (AD) 125.

Order VII rule 11-

Dhaka Leather Company Ltd vs Sikder Construction Ltd and anothe 54 DLR 357.

Order VII rule 11-

Khandkar Abul Hussain vs Government of the People's Republic of Bangladesh and others 54 DLR 467.

Order VII rule 11-

It is not the relief which is claimed, rather it is the relief which can be given to the plaintif, that has to be looked into and considered in a plaint.

Shafi A Choudhury vs Pubali Bank Ltd and others 54 DLR 310.

Order VII rule 11-

Where a certain fact is brought to the notice of the Court, though not specifically mentioned in the plaint or crops up subsequent to the filing of the suit and accepted as true by both the parties, such a fact, though not referred to in the plaint, can be taken into consideration for deciding the question of rejection of a plaint.

Shafi A Choudhury vs Pubali Bank Ltd and others 54 DLR 310.

Order VII rule 11-

In a suit for damages and compensation where the plaint does not show how damages were suffered and what are those damages, the plaint is liable to be rejected in limine.

Nazim Habibuzzaman vs World Bank, and others 54 DLR 159.

Order VII rule 11-

In deciding the question as to whether a plaint is liable to be rejected, the Court is always required to peruse the plaint and the plaint only. A Court is not permitted to travel beyond the plaint to dig out grounds to reject a plaint. .

Shan Hosiery vs Bangladesh Jatiya Shamabaya Shilpa Samity Ltd and others 54 DLR 291.

Order VII rule 11-

When the nature of transaction becomes doubtful on the specific allegation made by the pre-emptor then the matter is required to be tested by adducing evidence in order to ascertain the nature of transaction and to decide the case properly.

Alfazuddin Mollah and others vs Md Almas Chokder and anr 56 DLR (AD) 179.

Order VII rule 11-

For the ascertainment of the cause of action court is required to read the plaint in its entirety.

Sunder Ali being dead his heirs Abdul Hannan and others vs Md Serajul Islam Sarker & others 56 DLR (AD) 210.

Order VII rules 11 and 13-

Rejection of plaint under r. 11 of Or. VII does not preclude a fresh suit under r. 13. But still rejection of a plaint should not be hastily made without affording opportunity to the plaintiff either to. cure the defect or to amend the plaint. The power of rejection of a plaint shall be exercised only if the Court comes to the conclusion on mere reading of the plaint that even if all the allegations are proved the plaintiff would not be entitled to any relief whatsoever.

Chairman, BISE vs Motijheel Model High School 46 DLR 485.

Order VII rule 11 & Order XIV rule 2-

Since the law imposes a duty to determine the question of maintainability of the suit as the preliminary issue the Subordinate Judge erred in passing the impugned order without considering whether the suit could be decided on the preliminary issue. Even his refusal to decide the preliminary issue on the question of maintainability of the suit is to be held as illegal and arbitrary.

Abdul Halim Talukder alias Chand Mia Talukder vs Md Hazrat Ali Talukder and others 49 DLR 564.

Order VII rule 11(a)-

It is now well settled by good authorities that a proceeding is though premature on the date of filing but with· the continuance of the proceeding becomes matured, such question of immaturity loses all defects and becomes cured.

Sardar Jan Mohammad and another vs Lutfannessa and others 56 DLR 514.

Order VII rule 11(a)(d)-

The questions of limitation and of res judicata raised in the application for rejecting the plaint are mixed questions of law and fact, which need thorough investigation on adequate evidence for arriving at a correct decision on framing specific issues.

Mahbubul Huq (Md) vs Md A Kader Munshi & others 52 DLR 194.

Order VII rule 11(b)(c)-

An order rejecting a plaint is a decree and as such appeal lies against such order. In case of rejection of plaint under clause (b) or ( c) it is difficult to get relief in an appeal. When a plaint is rejected for not supplying the requisite stamp papers within a time fixed by the court, as in such a case impugned order must be found to be a proper one. But if there is sufficient cause for not supplying the same within the time fixed, restoration of the plaint may be ordered in appropriate cases on an application under section 151 of the Code of Civil Procedure.

Radha Rani Sadhu Kha vs Durga Rani Adhikari 47 DLR 360.

Order VII rule 11(d)-

Principles governing the rejection of plaint.-In the instant case it is concerned with clause (d) of rule 11 which provides that for rejecting the plaint the finding of the suit to be barred by any law must be based on the statement in the plaint. In other words, the plaint be rejected on that ground on the basis of statement made by the defendant in his pleading or in his application under Order VII, rule 11 of the Code.

Jalaluddin Ahmed vs Matiur Rahman Khan 41 DLR 77.

Order VII rule 11(d)-

There is nothing on record to show that the suit is barred by any lawThe finding of the learned Subordinate Judge is without any legal basis and not sustainable in law.

Ayezuddin Sheikh vs Abdul Karim Sheikh 42 DLR 154.

Order VII rule 11(d)-

In exercising the power of rejecting a plaint the Court can look into the statements of the plaint only. It cannot consider any fact stated in the written statement or any document produced by the defendant.

Sudhansu Kumar Barai vs Abdul Hashem 43 DLR 327.

Order VII rule 11(d)-

In the instant case where the plaintiff does not dispute the determination of her share as in the preliminary decree but disputes, on the ground of fraud, the actual allocation of share in the final decree drawn in earlier suit, the invocation of the rule of finality is beside the point.

Nannu Miah vs Mosammat Peer Banu Bibi 43 DLR 526.

Order VII rule 11(d)-

A plaint is liable to rejection where the suit appears from the statement in the plaint to be barred by any law.

Chief Engineer Roads and Highways Department vs Concord Engineers and Construction Ltd 48 DLR 243.

Order VII rule 11(d)-

Questions of limitation and res judicata raised in the application for rejecting the point are mixed questions of law and fact which need thorough investigation on adequate evidence for arriving at a correct decision on framing specific issues by the trial Court.

Mahbubul Haque vs Md A Kader Munshi 52 DLR (AD) 49.

Order VII rule 11(d)-

Abdul Hannan vs Managing Committee Mohammadia Market Baboshahi Bahumukhi Samabaya Samity Limited 55 DLR 409.

Order VII rule 11(d) and section 9-

The aggrieved member of the trade organisation must exhaust his remedies by way of reference to an Arbitration Tribunal before invoking the aid of the Civil Court.

Shaikh Ansar Ali & others vs Md Tofazzal Hossain and others 55 DLR 211.

Order VII rules 14 and 18-

Filing of document at late stage-Documents at a late stage may be filed with the leave of the court if they are authentic and not suspicious. It would be wise for the court to exercise discretion in favour of admitting such documents.

Moyezuddin Mondal vs Bena Rani Das 45 DLR 154.

Order VII rules 14 & 18-

In an appropriate case of non-filing of the documents at the time of filing of the plaint, if it appears to the court it is due to bonafide and genuine mistake, then the Court in its judicial discretion may grant leave considering the case to be one of exceptional circumstances.

MA Qasem vs Subordinate Judge, Artha Rin Adalat and others 52 DLR 341.

Order VII rules 14 & 18-

Non-filing of documents with plaint-No malafide or ill-motive could be attributed in not filing the document at the time of filing of the plaint-The new provision for such filing of documents has been added for the purpose of speedy disposal of cases but that does not mean that in case of a bonafide human error the Court will not be in a position to grant leave in unavoidable and exceptional circumstances to file necessary documents.

Afsaruddin Ahmed vs Banque Indosuez 44 DLR (AD) 136.

Order VIl rule 15-

A defendant is entitled to inspection of documents referred to in the plaint. Order rejecting application for such inspection is set aside and the plaintiff is directed to produce the documents in Court.

Abdul Jabbar Khan and others vs Sreela Sreejukteswar Radha Madhab Thakur Jiew 45 DLR 577.

Order VII rule 17 & Order VIII rule 9-

Although the provisions of Order VI, rule 17 may not strictly govern amendment in the written statement by an additional written statement the Court is entitled to apply the principles relating to amendment of the pleadings.

Abdur Rahman vs Sajjadur Rahman 51 DLR 420.

Order VII rule 15-

Admission of document- The policy underlying the Order is to exclude evidence the existence of which at the date of the suit is doubtful and as to the genuineness of which suspicion may arise because it was produced at the late stage. The subordinate judge exercised his discretion on sound judicial principle in refusing to admit the Kabuliyat at the late stage of the suit.

Sree Birendra Nath Singh vs Md Mokbul Sah 43 DLR 77.

Code of Civil Procedure, 1908 (Order VIII-IX)

Code of Civil Procedure, 1908

Order VIII-

Having rejected the said two applications the Court proceeded to try the case ex parte. The impression is unmistakable that the learned Advocate for the petitioner was thereafter, not allowed to participate in the proceeding because the Labour Court was determined to proceed ex parte. We consider, thereafter that the ex parte proceeding was totally uncalled for and without jurisdiction both in terms of clause ( d) of sub-section (2) of section 36 of the said Ordinance and in terms of Order VIII of the Code of Civil Procedure.

Adamjee Jute Mills vs Chairman Labour Court 39 DLR 11.

Order VIII rule 1 (after amendment)—

A party was not bound to put in a written statement under the old law, but now it is obligatory for the defendant to file a written statement.

Adamjee Jute Mills vs Chairman Labour Court 39 DLR 11.

Order VIII rule 1-

Filing of written statement by the defendant within the prescribed period of time is now a mandatory provision of law.

Lal Mamud and others vs Siraj Miah and others 45 DLR 638.

Order VIII rules 1 & 10-

The defendant has given reasonable explanation for delay in filing his written statement in the case-ends of justice will be frustrated if the same is not accepted.

Fazlul Huq vs Md Tohed Ali and others 47 DLR 326.

Order VIII rule 1 & Order XLI rule 12-

Right 'to appear and answer an appeal' as given under rule 12 is completely different from that to contest a suit by filing a written statement under rule 8(1) of the Code. The appellate Court fell in serious error of law in equating both the rights as same and in allowing the opposite parties to file written statement for the first time in appeal.

Narayan Chandra Saha and another vs Jatindra Chandra Saha and others 52 DLR 5.

Order VIII rules 1-5 and Order XIII rules 1-2-

Whether in view of the repeal of rules 1-2 of Order XIII the provisions of rules 15 of Order VIII, are applicable to the present case.

Abul Hashem Khan vs Shamsuddin Khan 41DLR415.

Order VIII rules 2 and 5-

Code of Civil Procedure (Amendment) Ordinance [XL VIII of 1983] came into force on 5-9-1983 before the judgment which was delivered on 30-8-1984. Rules 1 and 2 of Order XIII having been repealed on 5-9-1983 are not applicable to the present case.

Abul Hashem Khan vs Shamsuddin Khan 41 DLR 415.

Order VIII rules 2 and 5-

The defendant is not required to file the document with the written statement and under the amended rule 5 of Order VIII, the document not filed under the amended rule 2 may be received with the leave of the Court.

Abul Hashem Khan vs Shamsuddin Khan 41 DLR 415.

Order VIII rule 3-

Cause title forms very much a part of the application (for pre- emption). Statement made therein should be denied specifically or by implication.

Idris Mia vs Promode Ranjan Das & others 45 DLR 126.

Order VIII rule 5-

A party cannot adduce evidence unless he pleads his case in the pleading.

Shamsul Haque vs Saralat Ali 46 DLR 57.

Order VIII rule 5-

The plaintiff's assertion of facts made in the plaint have not been denied specifically or by necessary implication and there being no contrary evidence on record the Courts below erred in law in dismissing the suit by resorting to speculative assumptions.

Dayal Chandra Mondal and others vs Assistant Custodian Vested and Non-Resident Properties (L&B) and others 50 DLR 186.

Order VIII rule 5-

Since specific assertion was not denied specifically either in written statements or in evidence the Court is not inclined to permit the defendants to raise such a question at this stage.

Nurul Islam and others vs Jamila Khatun and others 53 DLR (AD) 45.

Order VIII rule 6-

The counter-claim raised by the defendnt does not come within the purview of rule 6 of Order VIII as the sum claimed by way of damages is not an ascertained amount.

Sonali Bank vs Ali Tannery Ltd and others 48 DLR 57.

Order VIII rule 6 & Order XLI rule 27-

Documents placed before the Appellate Division for the first time to be accepted as additional evidence cannot be accepted at such late stage as no case of set-off was made out in the written statement.

Bangladesh Shipping Corporation vs Rakibuddin Ahmed and others 48 DLR (AD) 203.

Order VIII rule 9-

Defendant entitled to file additional written statement, challenging the will, when new plaintiffs are added.

Most Golbanu vs Sreemati Uma Rani Roy Chowdhury 38 DLR 175.

Order VIII rule 9-

Where the plea or reason advanced for filing an additional written statement is unsubstantiated and belated the Court shall refuse to entertain such additional written statement.

Abdur Rahman vs Sajjadur Rahman 51 DLR 420.

Order IX-

Order IX relates to the date of hearing for which a summons has been issued to the defendant while Order XVII relates to adjourned hearing.

Adamjee Jute Mills vs Chairman Labour Court 39 DLR 11.

Order IX rules 2, 3 & 4-

After restoration of a suit to its original file and number a fresh notice upon the defendant is absolutely necessary in equity and as of right for preventing injustice.

Siddique (Md) vs Yeakuti Begum and others 49 DLR 402.

Order IX rule 3-

Ordinarily failure of Counsel's clerk to inform him about the date of hearing of the case will not be regarded as a sufficient ground for his non-appearance but there may be special circumstances when a clerk's failure may amount to be a sufficient cause.

Alfu Miah and others vs Government of the People's Republic of Bangladesh 45 DLR (AD) 112.

Order IX rule 3-

After rejecting the application for issuance of warrant, without passing further order directing the parties to get ready, passing of the order of dismissal of the suit is hit by Order IX, rule 3 of the Code.

Najabatullah vs Alokeshi Namasudra and others 51 DLR 454.

Order IX rule 3 & Order XVI rule 10(1)(3) –A

civil Court can issue warrant of arrest to ensure appearance of any witness or party in a litigation, before it, ifthe court thinks his presence necessary for final and effective decision in a dispute.

Najabatullah vs Alokeshi Namasudra and others 51 DLR 454.

Order IX rule 4—

None of the rules of Order IX CPC empowers a Court to dismiss a suit on a date not fixed for hearing.

Sonali Bank vs Nurul Kader 46 DLR 21.

Order IX rules 4 & 13-

The provisions contained in Order IX, rule 4 of The Code can be availed of only by plaintiff and definitely not by defendant.

Ali Akbar vs Farijuddin and another 53 DLR 284.

Order IX rule 6-

Under Order IX, rule 6 where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then if it is proved that the summons was duly served, the court may proceed ex parte.

Adamjee Jute Mills vs Chairman Labour Court 39 DLR 11.

Order IX rule 6-

In order to succeed in his case, contested or otherwise, the plaintiff must prove his own case-the weakness of the defendant's case is no ground for passing a decree in favour of the plaintiff.

Jinnatunessa vs Bangladesh, represented by the Deputy Commissioner, Mymensingh 48 DLR 208.

Order IX rule 6—

Service returns of summons are not in the record nor were the defendants served additionally by registered post with acknowledgement due. Nor was there any attempt on the part of the Subordinate Judge to satisfy himself that the non-appearing defendants were served with summons before fixing the suit for ex parte hearing. High Court Division sent the suit back to the Trial Court for fresh trial in accordance with law after setting aside the ex parte decree passed by it.

Syed Ameenul Haq vs MH Arif 40 DLR 314.

Order IX rule 6-

Hearing in default of a written statement stands on a separate footing from an ex parte hearing under Order IX, rule 6, CPC. Before the decree is passed in a suit fixed for hearing in default of written statement, the defendants may come to the court and file a written statement and it remains in the domain of the court's discretion to accept or reject that written statement.

KDH Laboratories Ltd vs Pubali Bank 40 DLR 1.

Order IX rule 6—

If the court accepts the written statement in exercise of its discretion, it must give reasons for it on failure of which the superior Court will be at liberty to interfere with the decision. In the present case the discretion was exercised rationally.

KDH Laboratories Ltd vs Pubali Bank 40 DLR 1.

Order IX rule 6 and Order XVII rule 2-

Ex parte hearing can only be ordered under two instances i.e. under Order IX, rule 6 and Order XVII, rule 2 for filing written statement in default thereof the defendant can still appear and argue his case without the written statement.

Adamjee Jute Mills vs Chairman, Labour Court 39 DLR 11.

Order IX rule 6 and Order XVII rule 2-

On failure of the defendant to file written statement on the date fixed, the suit cannot be fixed for hearing ex parte but will be fixed for hearing in default of the written statement on which day the defendant has right to appear and participate: hence the proceeding will not be ex parte.

Adamjee Jute Mills vs Chairman, Labour Court 39 DLR 11.

Order IX rule 7-

An ex parte proceeding being not an ex parte proceeding in the eye of law, the provisions of Order IX, rule 7, CPC are not attracted. The decision of the Indian Supreme Court reported in AIR 1964 (SC) 99 3 holding that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to the party the remedy of application under Order IX, rule 7 has no manner of application.

KDH Laboratories Ltd vs Pubali Bank 40 DLR 1.

Order IX rule 8 and Order XVII rule 2-

When prayer by the lawyer for adjournment of the plaintiff's case is refused by the Court, whereupon the lawyer withdraws from the case and the case thereupon is dismissed-the conclusion is there was no appearance on behalf of the plaintiff and as such the dismissal order is one passed under Order . IX, rule 8 read with Order XVII, rule 2 CPC.

Nurul Huq vs Sonali Bank 39 DLR 223.

Order IX rule 9-

The learned Advocate appearing for the petitioner submits that the learned Assistant Judge acted wrongly in allowing the application under section 151 of the Code when there is specific provision under Order IX, rule 9 of the Code of Civil Procedure for restoration of the suit.

Zahirul Alam vs MN Thakur 40 DLR 16.

Order IX rule 9-

High Court Division held that since the learned Assistant Judge exercised his jurisdiction under section 151 CPC in setting aside the order of dismissal, no interference is called for, section 115 CPC authorises High Court Division to interfere into the interlocutory order.

Zahirul Alam vs MN Thakur 40 DLR 16.

Order IX rule 9-

Application moved under Order IX, rule 9 with a prayer for condoning the delay under section 151 in its filing-the court has the inherent power to grant it for ends of justice.

Karamat Ali vs Ramizuddin Ahmed 39 DLR 336.

Order IX rule 9-

Boycott by the local Bar of the Munsif's Court is sufficient cause for failure of the suitor to know as to the time when the works of the Court would be resumed by the lawyers' attendance. Any delay in filing application under Order IX, rule 9 CPC in circumstances like this is condonable.

Shaikh A Kader vs Kalu Sk 37 DLR 304.

Order IX rule 9-

Fresh suit-Same cause of action-Since two suits were filed one after another upon the same cause of action, the later suit ought to have been stayed. The later suit having been brought before the dismissal of the Title Suit No. 210of1981 the bar of Order IX rule 9 has no manner of application in the present case.

Hajee Abdul Latif vs Abdul Haq and others 44 DLR 601.

Order IX rule 9-

The Court below committed no illegality in holding that the subsequent application under Order IX rule 9 was not maintainable.

Alhaj Mokler Hussain Talukder vs Ainuddin Ahmed and others 45 DLR (AD) 37.

Order IX rule 9-

It is wrong to say that for a remedial action against an order time would start to run against one from the date of the order and not from the time when one comes to know about it.

When an injury is caused to a party due to any mistake or default committed by a court or its officers, it is not only the right but also the duty of the court to correct its own mistake.

The question of limitation is immaterial in a case, when the court in restoring the suit merely corrected the mistake of its own officers of not informing the lawyers of the parties about return of the record and the next date fixed.

Keramat Ali Bhuiyan vs Ramizuddin Ahmed Bhuiyan 43 DLR (AD) 58.

Order IX rule 9-

Since the Artha Rin Adalat Act does riot provide any provision, directly or indirectly, contrary to provision of Order 9 rule 9 CPC an application under Order IX, rule 9 CPC can be entertained by the Artha Rin Adalat.

Sonali Bank vs Md Al-Akram (Badal) and others. 46 DLR 671.

Order IX rule 9-

The trial Court was required to look into the previous orders and apply its mind as to whether prayer for adjournment was genuine. The Court having allowed 17 adjournments contributed to the abuse of the court process. The failure of the plaintiff to conduct the hearing of the suit, if considered in the context of his past conduct, cannot be said to be due to any sufficient cause.

Abdul Mannan Miah (Md) vs Abdul Jalil Miah and others 49 DLR 524.

Order IX rule 9-

Islami Bank Bangladesh Limited vs Al-Haj Md Shafiuddin Howlader & another 52 DLR (AD) 76.

Order IX rule 9-

When a SCC Suit is dismissed for default provision of Order IX rule 9 of the Code of Civil Procedure is applicable.

Abdul Waresh vs Md Abdul Halim and others 53 DLR 608.

Order IX rule 9-

Agrani Bank vs Artha Rin Adalat and others 55 DLR 389.

Order IX rule 9-

When the factslallegations pleadings in two suits filed one after another are same, the parties are same, the suit land islare same and that on the same pleadings the earlier suit was dismissed even though ex parte, the second suit on the same pleadings is barred under Order IX rule 9 of the Code.

Taiyaba Zaman vs Gias Uddin Ahmed and other 55 DLR 523.

Order IX rule 9-

Agrani Bank vs Artha Rin Adalat and others 55 DLR 389.

Order IX rule 9 & Order XXII rule 10-

Assignee's claim to be added as· a party in a Miscellaneous case under Order IX, rule 9 of the Code-It will be for the assignors to satisfy the Court that there was sufficient cause for their nonappearance in the suit they wanted to restore. The assignee is hardly in a position to prove independently the assignor's case as made out in the application under Order IX rule 9 and in that view the assignee is a redundant party in the Miscellaneous case.

Almasuddin vs A Wadud Khan 42 DLR 391.

Order IX rule 9 and Order XLIII rule l(c) and section 151-

Suit dismissed for not depositing cost within time-An order under Order IX, rule 9 is appealable under Order XLIII, rule 1 ( c ), but Court can restore the suit invoking its power under section 151 to secure the ends of justice.

An order passed by a Court under Order IX, rule 9 CPC is no doubt an appealable order under Order XLIII, rule l(c) CPC. In this case from the facts it appears that the application under section 151 of the Code was filed for restoration of the suit on setting aside the order of dismissal of the Miscellaneous Case which was dismissed not for non-appearance of the plaintiff when the case was taken up for hearing but for not depositing the cost within the time allowed by the Court. The power under section 151 of the Code is not a new one, it is inherent in it by virtue of its duty to do justice between the parties before it and it is within the province of the Court to invoke such power to secure the ends of justice regard being had to the facts and circumstances of a given case.

Rajiqul Islam & another vs Abul Kalam 42 DLR 19.

Order IX rule 9 read with Order XLIII rule 1(c)-

When an application under Order IX rule 9 of the Code is dismissed for default, it is an appealable order but when the case is dismissed not for a default but for non-payment of cost, then the order can be set aside by invoking section 151 of the Code on acceptance of the costs subsequently.

Wajeda Khatun and others vs Saonatun Bewa 55 DLR 460.

Order IX rule 9 and section 151-

If there is specific provision in the Code of Civil Procedure which covers a particular case or if there is a positive prohibition against an act the powers under section 151 of the Civil Procedure Code cannot be invoked-An important exception to this general rule: Where a mistake of a Court's Officer causes injustice to a particular party, the power under section 151 of the Code can be exercised for the purpose of giving necessary relief.

Syed Azizul Haque alias Nanna Miah vs Sonali Bank 42 DLR 198.

Order IX rule 9 and section 151-

Provision of section 5 of the Limitation Act applicable to an application under Order IX, rule 9 CPC. As no application for condonation of delay was filed nor any ground for condonation of delay was made out section 151 CPC cannot be invoked.

Asstt Custodian vs Jugal Chandra Saha 41 DLR 473.

Order IX rule 13-

Order of dismissal for default being an appealable order under Order XLIII, rule l(d) the Court cannot interfere under section 151 CPC and pass an order restoring a case to file.

Md M Hossain Mollah vs Asst. Dy Custodian 37 DLR 287.

Order IX rule 13-

Suit for specific performance of contract for the sale of the suit property instituted by the plaintiff-respondent. Defendant-appellant denied the contract by filing a written statement-The case was fixed for hearing on 16-2-1983-0n that day the appellant filed an application for adjournment with a medical certificate on the ground of illness-The prayer for adjournment was not granted and the suit was decreed ex parte on that date. Miscellaneous Case under Order IX, rule 13 of the Code of Civil Procedure was started- Then again the case was fixed for hearing on 26- 7-1983-The appellant unsuccessfully moved another application for examination of her doctor on 13-9- 1983 and on 1-11-1983 the Miscellaneous Case was dismissed-High Court Division refused to interfere with the order.

Held: Appellate Division allowed the appeal setting aside the orders of the courts below after considering the facts and circumstances of the case.

Khaleda Roushan Ara vs Nurul Huq (Md) 42 DLR (AD) 48.

Order IX rule 13-

Labour Court has no jurisdiction to set aside an ex parte decree passed against a defendant.

Adamjee Jute Mills vs Chairman Labour Court 39 DLR 11.

Order IX rule 13-

Date fixed for hearing happened to be a holiday. Party not appearing in court on the next date-Dismissal of the case for non-appearance improper-Restored to hearing under Order IX, rule 13.

Md Bandi Ali Khan vs Govt of Bangladesh 38 DLR 258.

Order IX rule 13-

In the main application under Order IX, rule 13 the appellant has sought to explain the reasons of his delay in filing the miscellaneous case though he did not expressly pray for condonation of delay, yet the delay was condoned by the court on waiving the failure to pray for condonation.

Chaudhury Saifuddin Ahmed vs Shamsuddin 40 DLR 10.

Order IX rule 13-

When the party seeking to have the ex parte decree set aside is found wilfully neglectful to comply with provision of section 17 (regarding deposit of the dues or furnishing security bond) even though the defect was brought to his notice-Ex parte decree cannot be set aside.

Md Ebadullah Bepari vs Nikhil Chandra Das 37 DLR (AD) 174.

Order IX rule 13-

It was submitted that the appellant had only taken two or three adjournments and that a medical certificate was produced as to her suffering from heart disease, and that her application for time for examining the doctor being rejected she was denied opportunity to prove her cause of absence on the date of hearing of the Miscellaneous Case. There is substance in the submission. Judgment and order of the courts below are therefore set aside and the Miscellaneous case is allowed.

Khaleda Roushan Ara vs Md_ Nurul Huq 42 DLR (AD) 48.

Order IX rule 13-

The compromise decree in question was passed even without issuing summons upon defendant No. 8. This speaks of fraud. Studied in the light of decisions cited, limitation was not a material point for the decision of allowing the Misc. case under Order IX r. 13 CPC.

Moynul Hasan vs Nazmul Haq 43 DLR 82.

Order IX rule 13-

Defect of Party-All that is required in an application under Order IX rule 13 of the Code is to implead the person or persons in whose favour the decree is passed and not others. Since the petitioner who is the decree holder has been impleaded in this case, it cannot be said that the miscellaneous case suffers from any defect of party.

Abdul Mannan vs Waliul Huq 46 DLR 630.

Order IX rule 13-

Appeal-Effect of its disposal-'Appeal' which has not been defined in the Code, is meant to be an application by an aggrieved party asking an appellate Court to set aside, modify or revise a decision of a subordinate court-an 'appeal' even if irregular, incompetent or time-barred is nonetheless an appeal-the order of dismissal of a memorandum of appeal as time-barred comes within the deeming provision of section 2(2) of the Code, because by such an order the rights of parties with regard to matters in dispute are finally determined.

Abdul Mannan vs Jobeda Khatun & others 44 DLR (AD) 37.

Order IX rule 13-

Setting aside ex parte decree-Before fixing the suit for ex parte hearing the trial Court must satisfy itself that notices were duly served upon the substituted heirs. No such satisfaction was recorded and then the records did not show that notices were issued both through the usual course of process server and under registered post (ref 40 DLR 314). In that view ends of justice will not be met if the original suit is not restored to its file and number.

Gulshan Ara Begum vs Moazzem Hossain 43 DLR 481.

Order IX rule 13-

Setting aside decree passed ex parte--Order of remand for considering the question of limitation-In the instant case no question of limitation was mooted or discussed by the trial Court and hence it could not be said that by restoring the case the delay was impliedly condoned. When a matter is sent back and the superior Court in its discretion directs that the parties be given an even opportunity to place their respective cases such discretionary order should not ordinarily be interfered with unless it causes a serious prejudice to one of the contending parties.

Modern Shipping Agencies vs CJWTC Ltd 43 DLR (AD) 179.

Order IX rule 13-

No ex parte decree would be set aside for its briefness when the defendant fails to bring home either of the two grounds on which such a decree can be set aside.

Alfu Miah and others vs Government of the People's Republic of Bangladesh 45 DLR (AD) 112.

Order IX rule 13-

Since, on the face of the record the application under Order IX rule 13 CPC is barred by limitation under Article 164 of the Limitation Act and the Court has not lawfully condoned the delay the Assistant Judge clearly erred in law in passing the impugned order setting aside the ex parte decree.

Akbar Hossain Khan (Md) and another vs Md Awlad Hossain Khan and another 49 DLR 561.

Order IX rule 13-

When an ex parte decree is challenged on ground of being obtained by fraud, and some elements of fraud and collusion are found on the record, the court is not to sustain such fraudulent decree even if an application seeking the setting aside of the ex parte decree is barred by limitation.

Government of Bangladesh and another vs Mashiur Rahman and others 50 DLR (AD) 205.

Order IX rule 13-

As the suit has been restored on payment of compensatory cost to the petitioners, it is not a fit case for interference.

AKM Jamaluddin and others vs Mantu Lal Majumder 49 DLR (AD) 150.

Order IX rule 13-

The court below having found service of summons not satisfactory gave the defendant a chance to contest the suit-There is no illegality occasioning failure of justice in setting aside the ex parte decree.

Sharif Ullah Patwary and others vs Jharna Dhara Chowdhury and another 47 DLR 307.

Order IX rule 13-

In order to set aside an order made ex parte the party which seeks such order should be clean in making the ground for setting aside the order and the court should not exercise its jurisdiction in allowing such application without application of its mind to the facts of the case.

Jasimuddin (Md) and another vs Government of the People's Republic of Bangladesh represented by the Deputy Commissioner. Dhaka 47 DLR 585.

Order IX rule 13-

The defendant having not made out a case that he was prevented by sufficient reasons from appearing in the court on the date fixed for ex parte hearing he could not come for setting aside the ex parte decree showing cause for his non-appearance on the earlier date.

Sonali Bank vs Mozaffor Hossain 50 DLR 174.

Order IX rule 13-

It will be wholly inequitable to permit the defendants to prove their facts in this Court after l 0 years. The defendants must take the consequence for their own laches.

Red Sun Limited& others vs Uttara Bank 51 DLR (AD) 256.

Order IX rule 13-

Since the decree holder petitioner accepted the cost, so he cannot attack the court's order for setting aside the ex parte decree as the petitioner cannot approbate and reprobate at the same time.

Muklesur Rahman (Md) vs Waziullah 51 DLR 418.

Order IX rule 13-

An important order as the transfer of the case from one Court to another should invariably be communicated to the parties concerned and in making of such communication the signature of the parties or their Advocates should be obtained and when signatures are not obtained, the order sheets should show that the information has been communicated.

Santi Gopal Dey and others vs Maliza Rani Saha and others 51 DLR290.

Order IX rule 13-

The Miscellaneous Case under Order IX, rule 13 of the Code was incompetent against the ex parte order passed by the District Judge in Miscellaneous Case No. 28 of 1979 in view of Sub-Article (10) of Article 27 of President's Order 7 of 1978, inasmuch as, the said ex parte order was liable to be challenged only . by an appeal to the High Court Division.

Safiqueuddin Ahmed (Md) and another vs House Building Finance Corporation 53 DLR 80.

Order IX rule 13 and Order V rule 19A – 

Ex parte decree-Delivery of possession of the land given in execution of the ex parte decreeWhether the trial Court which passed the ex pane decree on being satisfied that the summons was duly served upon the defendant by recording a finding to this effect has jurisdiction to go against its own finding and set aside the ex parte decree passed by the trial Court itself, although the defendant did not depose on oath before the Court that he had not received the summons.

Md Insan Ali vs Mir Abdus Salam 40 DLR (AD) 193.

Order IX rule 13 and Order V rule 19-

AThe onus to prove that summons was duly served upon the defendant is on the plaintiff'=He discharged his onus of proof as the process-server submitted his report, along with a declaration, that he served the summons by hanging it on the gate of the defedant when the latter refused to accept it-Examination of the process-server when he submits his report with a declaration is not mandatory in view of rule 19 A of Order V, CPC but his examination is mandatory when he has simply submitted his report about the service of summons without any verification or declaration that he had served the summons upon the defendant. Onus shifted to the defendant that the summons was not served upon him.

Md Insan Ali vs Mir Abdus Salam 40 DLR (AD) 193.

Order IX rule 13, Order XLIII rule l(d)-

Maintainability of appeal against dismissal of a case under Order IX, rule 13 at early stage and order of setting aside ex parte decree-Since the statute provides remedy for dismissal of application under Order IX rule .13 for default, whatever might be the state of passing the order of dismissal, appeal arising out of the order of such dismissal is maintainable. But the Miscellaneous Case under Order IX rule 13 having been dismissed for non-filing of requisites and not on merits, the . Appellate Court committed error of law in setting aside the relevant ex parte decree. Order dismissing the Miscellaneous case is .set aside and the case is sent back for hearing on merits.

Dilwar Hossain vs Nani Gopal Dutta 42 DLR 497.

Code of Civil Procedure, 1908 (Order X-XX)

Order XI rule 1 (as amended)-

The plaintiff or the defendant by leave of the Court may deliver interrogatories in writing for examination of the opposite parties within 10 days from the date of framing of issues.

Kohinoor Chemical Company Ltd vs Eastern Shippers & Traders Ltd 41DLR387.

Order XI rule 1 (as amended)-

The provision fixing the time limit is not mandatory in nature, rather it is directory in nature.

Where the lawmaker provides a fixed period of time for doing a thing and does not make any consequential provision to follow in the event of failure to perform the act within the specified period, such provision of law of fixing the time limit, it seems to us, is not mandatory, rather it is directory in nature.

In view of discussion above, it is held that amended rule I of Order XI of the Code of Civil Procedure is not mandatory in nature, rather it is directory.

Kohinoor Chemical Company Ltd vs Eastern Shippers & Trader Ltd 41DLR387.

Order XI rule I-

Interrogatories may be delivered only with the leave of the court and it is in the discretion of the Court to grant or not to grant leave. In the facts of the case, the learned trial Court rightly exercised his judicial discretion in refusing to grant leave.

Moon Garments Industries and others vs Janata Bank, Foreign Exchange Corporate Branch and others 50 DLR (AD) 72.

Order XI rule 8-

The provision of Order XI, rule 8 of the Code of Civil Procedure is directory in character and the court is yet possessed of powers to extend time in a proper case.

Bisheswar Bhattacharjee vs Shantimoy Bhattacharjee and others 52 DLR (AD) 124.

Order XI rule 21-

The foundation for exercise of power under this provision of law is the fulfillment of two requirements-the first is the failure of interrogated party to comply with any order to answer the interrogatory, and the second is the interrogating party applying to the Court to impose the penalty.

Yusuf vs Moftal Ahmed Sowdagar 45 DLR (AD) 178.

Order XI rule 21-

Striking out of written statement-Whether striking out for nonproduction of document is legal-As the plaintiff did not file any petition for inspection of the documents called for and ordered to be produced in court, the provision for striking out the written statement is not attracted in the present case.

Abdul Latif vs Residential Model School 44 DLR 392.

Order XI rule 21-

Power to strike out written statement-When it will not be exercised-Interrogatories having not been filed by the plaintiff within the specified time, the Courts below committed no illegality in rejecting his prayer for striking out the written statement on the question of answering interrogatories.

Ansar Ali vs Yeasin Mea 45 DLR 517.

Order XI rule 21-

The Court cannot act on its own motion to initiate the penal action but can do so only on the application of the offended party.

Nurjahan Begum and others vs Jasimuddin Ahmed and others 51 DLR 310.

Order XII rule 6-

In a suit. for money the defendant admitted the plaintiff's claim and the court thereupon decreed the suit-Such a decree on admission includes also the interest claimed by the plaintiff till realisation of the dues.

Messrs Kadam Rasul Silicate Works vs Sonali Bank 37 DLR 215.

Order XII rule 6-

If a judgment is passed on admission then no decree need be drawn up and the plaintiff may enforce payment of the amount in pursuance of the judgment.

Messrs Kadam Rasul Silicate Works vs Sonali Bank 37 DLR 215.

Order XII rule 6 & Order VI rule 1—

Admission, ambit of—Decree on admission—Written objection filed in an interlocutory matter would not be a part of the pleading of the parties in the suit but if there is an admission in the written objection it would be regarded as an admission. The expression "or otherwise" under r. 6 of Order XII would empower the Court to see the admission made elsewhere in the proceeding during the trial and should not be confined only to written statement. The decree, as passed on admission made otherwise than in written statement, is in accordance with law and need not be interfered with in exercise of revisional jurisdiction.

A Elahee & Co vs MM Aziz 44 DLR 131.

Order XIII rule 1-

Objection as to admissibility of evidence is to be taken at the first instance. In the instant case no such objection was raised against the Commissioner's report in question which can also be relied upon as the same is an official document and was prepared in due course.

Abdul Quader Chowdhury vs Sayedul Hoque 43 DLR 568.

Order XIII rule 4-

Provision of section 36, Stamp Act mandatory-Once a document properly admitted under Orders XIII, rule 4 of the Civil Procedure Code-Its admissibility cannot be questioned in any Court at any stage of the same suit on ground of insufficiency of stamp.

Messrs Daulat Ltd vs Pubali Bank Ltd 39 DLR 243.

Order XIV rule 1-

High Court Division misdirected itself in law in holding that the trial Court was not justified in raising the plea of adverse possession suo motu by not framing any issue on this point earlier.

Abdul Jalil Miah (Md) vs Niropama Ritchil and others 49 DLR (AD) 61.

Order XIV rule 1-

The plea that the suit was not properly valued and required court-fee was not paid being not an issue in the suit, it cannot be considered for the first time by the Appellate Division.

Mokbul Hossain vs Khandaker Mujibur Rahman 51 DLR (AD) 77.

Order XIV rule 1-

From the facts of the case it is evident that it was totally unnecessary for the Judges to indulge in the discussion on polygamy in Islam which was neither an issue in the suit nor required to be decided in the context of the pleadings of the parties.

Elias (Md) vs Jesmin Sultana 51 DLR (AD) 99.

Order XIV rule 1-

It is a long standing practice of this court that no newly engaged lawyer could act on behalf of any party without the consent of the previously engaged lawyer and the newly engaged lawyer can only act taking consent of the previously engaged lawyer.

Abul Kashem vs Executive Engineer & others 53 DLR 186.

Order XIV r. 1(4) & 2 and Order XV rule 3-

Assistant Judge wrongly decided the question of maintainability of the suit wihout framing proper issues and allowing the parties to lead evidence and the Subordinate Judge on appeal rightly set aside the disputed decree.

Abdul Hamid Shaikh vs Sree Ram Krishna Dev and others 48 DLR 367.

Order XIV rule 2-

Deciding a preliminary issue on valuation-in the present case the objective standard of valuation being available and the question of jurisdiction being involved, the munsif committed an error of law in not deciding the question of valuation and in putting off the matter to be decided with other issues.

Shaukat Hossain vs Abdul Hakim 42 DLR 508.

Order XIV rule 2-

The plaintiff may take recourse to section 151 for rejection of the set-off, alternatively he may bring the maintainability of the set-off as an issue of law to be decided first.

Sultana Jute Mills Ltd and others vs Agrani Bank and others 46 DLR (AD) 174.

Order XIV rule 2-

The trial Court is under the mandate of law to decide the issues of law where a party applies for such decision.

Monjur Ahmed Chowdhury vs Gulbanu 46 DLR 267.

Order XIV rule 2 –

Question of maintainability of the suit cannot be decided at the interlocutory stage of hearing temporary injunction matter when evidence should be required to decide the same. But such question can be decided at that stage when from the averments made in the plaint or from admitted facts apparent on the face of the record it appears that the suit is expressly or impliedly barred by any law or is not otherwise maintainable. In such circumstances decision on the question of maintainability of the suit need not be postponed till the trial of the suit in considering prayer for temporary injunction in a case where there is no necessity of taking evidence for deciding such a question.

Chairman, Rajdhani Unnayan Kartipakhya and others vs Abul Hossain & others 50DLR 249.

Order XIV rule 2 & Order XV rule 3-

Framing of issues on law alone when not proper since the whole question centers round whether the trust is a public trust or a private trust and evidence has to be led in support of such issue, framing of issue on point of law alone should not be allowed. All the issues relating to law and facts must be framed together for the greater interest of the parties.

Naresh Lal Saha vs Bhupati Mohan Roy 42 DLR 485.

Order XIV rule 2 and Order XV rule 3-

Issue of law and maintainability of suitWhatever may be the Court's view on issue of law, it is now mandatory for the Court to try and determine the issue of law and facts as well. The Court may hear the issue of maintainability as a preliminary issue but it must postpone its judgment till the hearing of the suit on all other issues and thereafter give its findings on the issue of maintainability and on other issues as well.

Inspector, Railway Nirapatta Bahini vs Sohrab Ali 43 DLR 79.

Order XIV rule 2 and Order XV rule 13-

Issues of law and of fact-When both issues need be framed together-since the whole question centres round only one point i.e. whether the trust in question is a public trust or a private trust and when evidence has to be led in support of such issues, framing of issue on point of law alone should not be allowed. Justice demands that all the issues relating to law and facts be framed together.

Naresh Lal Saha vs Bhupoti Mohan Roy 44 DLR 96.

Order XIV rule 2, Order XV rule 3 & Order XX rule 5-

Special provisions in Order XIV, rule 2 and Order XV, rule 3, CPC form exceptions to the general rule prohibiting the trial or disposal of a suit piecemeal.-Provisions of Order XIV, rule 2, CPC are obligatory and not discretionary {rel30 DLR (SC) 30.

Sultan Miah vs Haradhan Saha 40 DLR 236.

Order XIV rule 2, Order XV rule 3 & Order XX rule 5-

A plaint cannot be rejected giving a decision on a particular issue when already all the issues have been framed on the pleadings of both the parties.

Jugal Kishore Sarker vs Md Sohrab Ali Sk and others 49 DLR 508.

Order XIV rule 2 and Order XLIII rule 23 –

Preliminary point-It is a point the decision on which is sufficient to dispose of the whole suit. It includes a point relating to cause of action or locus standi. In common phraseology it may be called a "technical knockout." The Advocate raising preliminary point having however argued on other issues as well, the preliminary point loses much of its force and the same stands on equal footing with other points raised on merits.

Abul Kalam Azad vs Muslema Khatun 42 DLR 332.

Order XV rule 3-

Issue of law and maintainability of suit-whatever may be the Court's view on issue of law, it is now mandatory for the Court to try and determine the issue of law and facts as well. The Court may hear the issue of maintainability as a preliminary Issue but it must postpone its judgment 'till the hearing of the suit on all other issues and thereafter give its findings on the issue of maintainability and on other issues as well.

Inspector, Railway Nirapatta Bahini, Bangladesh Railway KhuIna andothers vs Sohrab Ali 43 DLR 79.

Order XV rule 13-

Issues of law and of fact -when both issues need be framed together since the whole question centres round only one point i.e. whether the trust in question is a public trust or a private trust and when evidence has to be led in support of such issues framing of issue on point of law alone should not be allowed. Justice demands that all the issues relating to law and facts be framed together.

Naresh Lal Saha and others vs Bhupati Mohan Roy and others 44 DLR

Order XVI rule 1-

There is no bar in issuing summons upon cited witnesses for the 2nd time if it is necessary in the interest of justice. If the application for summons is not a bonafide one, the Court may refuse the prayer for issuance of summons.

Dildar Hossain vs Md Sharif Hossain 43 DLR 196.

Order XVI rule 1-

The privilege of a litigant to take out summons to witnesses is subject to the satisfaction of the Court. If the prayer appears to be wanting in bonafides or it is considered as an abuse of the process of the Court, it will be lawful for the Court to refuse the prayer.

Mansur Ali Sikder vs Kanailal Banarjee & others 50 DLR (AD) 14.

Order XVII-

Order X relates to the date of hearing for which a summons has been issued to the defendant while Order XVII relates to adjourned hearing.

Messrs Adamjee Jute Mills Ltd vs Chairman Labour Court 39 DLR 11.

Order XVII rule 1-

A party which is granted adjournment with cost as condition precedent, cannot be granted further adjournment unless the cost is paid.

Sk Sohrab Ali vs Gazi Abdur Rashid and others 53 DLR 598.

Order XVII rule 1-

Adjournment cannot be allowed as a matter of course, even if both the parties ask for it.

Mahbubur Rahman and others vs Agrani Bank and another 55 DLR (AD) 61.

Order XVII rule 2-

Order XVII, rule 2 provides that where on any day to which the hearing of the suit is adjourned the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the· modes directed in that behalf by Order XI or make such other order as it thinks fit.

Messrs Adamjee Jute Mills Ltd vs Chairman Labour Court 39 DLR 11.

Order XVII rule 2 and Order XX rule 4(1) –

Ex parte decree—

When to be passed and extent of judgment-Before an ex parte decree is passed, the court is required to go through the records whether such a decree could be passed on the assertionslevidence of the plaintiff, but the court is not required to delve deep into the matter and ferret out a defence plea that may lead to the dismissal of the plaintiffs case.

Alfu Miah and ors. vs Government of the People's Republic of Bangladesh 45 DLR (AD) 112.

Order XVIII rule 2-

Right of parties to address the Court generally on the whole case is called an argument.

Chowdhury Tanbir Ahmed vs Bangladesh 40 DLR 331.

Order XVIII rule 2-

Production of evidence - plaintiffs' case having been totally denied by the defendant, onus to prove the case was entirely on the plaintiffs and they having failed to prove it, there was no onus on the defendant to discharge by producing evidence.

Noor Mohammad Khan vs Bangladesh 42 DLR 434.

Order XVIII rule 7-

Discretion cannot be extended beyond the law of Evidence to allow a party to the suit, who did not cross-examine a witness in time without any excuse, to avail his right to cross-examine the witness.

Abdul Munim and others vs Hazera Zaman and others 53 DLR 356.

Order XVIII rule. 12-

When a judge hears and sees witnesses and makes a conclusion or inference with regard to what is the weight on balance of their evidence, that judgment is entitled to great respect irrespective of whether the judge makes any observation with regard to credibility or not.

Kashem Khan (Md) & others vs Sudarshan Singh 49 DLR 619.

Order XVIII rule 17-

Discretionary power given by Order XVIII, rule 17 to recall and examine witnesses must be exercised in accordance· with law and not arbitrarily.

Nurul Islam vs Md Abdur Rashid 37 DLR (AD) 32.

Order XVIII rule 17-

The Court has ample power to recall at any stage a witness who has earlier been examined, cross-examined and discharged. The powers are very wide and the court can recall a witness even while considering its judgment, if any ambiguity or omission is noticed. This power can be exercised at the instance of a party or even suo motu, for effective and complete adjudication of disputes in doing justice in a given case.

Morsalin (Md) and others vs Nurul Huda and others 48 DLR 593.

Order XVIII rule 17-

The Court can re-call a witness even while considering the judgment, if any ambiguity or omission is noticed. The power can be exercised suo motu and also at the instance of a party.

Hanif Ali (Md) vs Hajera Khatun and others 55 DLR 17.

Order XX rule 4—

Ajudgment even when it is ex parte should show application of court's judicial mind as to whether the plaintiffs witnesses and the papers produced proved the plaintiffs case.

Shamsuddin Ahmed & others vs Government of Bangladesh & others 45 DLR 675.

Order XX rule 4-

It is imperative that all judgments must contain the reasons for the decision. The judgment of a Court of Small Causes must indicate that the SCC Judge applied his judicial mind into the material evidence on record.

Nurul Hossain Khan vs Salenoor Begum 50DLR 38.

Order XX rule 4 and Order XLI rule 1-

SCC suit-Absence of framing of issue on relationship of landlord and tenant-Though no issue was framed specifically on this point, it is clear from the judgment that the sec Judge had taken into consideration the main points and decided the same as if there was an issue on the points and hence the judgment cannot be assailed only for not framing specific issue.

Jogesh Chandra Pal vs Ershad Hossain Chaudhury 43 DLR 170.

Order XX rule 4(1 )-

Ex parte decree—When to be passed and extent of judgment - Before an ex parte decree is passed, the court is required to go through the records whether such a decree could be passed on the assertionslevidence of the plaintiff, but the court is not required to delve deep into the matter and ferret out a defence plea that may lead to the dismissal of the plaintiffs case.

Alfu Miah and others vs Government of the People's Republic of Bangladesh represented by the Deputy Commissioner Dhaka & others 45 DLR (AD)

Order XX rule 4(2)-

Even in ex parte disposal, a Court is not absolved of statutory obligation of writing a lawful judgment as required under the Code. Discharge of judicial function in slipshod and perfunctory manner was time and again deprecated, therefore, such decision is outright rejected.

Korea Exchange Bank, Seoul, Korea vs Gemini Garments Limited and others 56 DLR 392.

Order XX rule 4(2) & Order XLI rule 31-

Trial Court as well as the appellate Court should apply their mind to the facts and circumstances of the case and the issues involved therein and upon assessment of evidence on record, should give a reasoned judgment thereon not only to satisfy their own conscience but also of the litigants when confidence of the litigant in courts is built upon the quality of judgments it delivers.

Mozibar Rahman Molla (Md) and another vs Md Rehazuddin and others 56 DLR 427.

Order XX rule 5-

Omission of the comma & words "Unless the finding upon any or more of the issues is sufficient for the decision of the suit" in Order XX, rule 5 CPC amended by Ordinance No. 48 of 1983-Effect of-While writing the judgment, the trial Court has to give its decision on all the issues framed. It has no longer a discretion to avoid decisions on fact.

Md Sultan Miah vs Sree Haradhan Saha 40 DLR 236.

Order XX rule 5-

Issue of law and maintainability of suit-whatever may be the Court's view on issue of law, it is now mandatory for the Court to try and determine the issue of law and facts as well. The Court may hear the issue of maintainability as a preliminary issue but it must postpone its judgment till the hearing of the suit on all other issues and thereafter give its findings on the issue of maintainability and on other issues as well.

Inspector, Railway Bahini vs Sohrab Ali 43 DLR 79.

Order XX rule 5-

Issue of law and maintainability of suit-whatever may be the Court's view on issue of law, it is now mandatory for the Court to try and determine the issue of law and facts as well. The Court may hear the issue of maintainability as a preliminary issue but it must postpone its judgment till the hearing of the suit on all other issues and thereafter give its finding on the issue of maintainability and on other issues as well.

Inspector, Railway Bahini vs Sohrab Ali 43 DLR 79.

Order XX rr 6(1) & 7 and Order XXVI rule 14(3)-

The trial Court after accepting the commissioner's report having passed the final decree as per provision of sub-rule (3) of rule 14 of Order XXVI of the Code of Civil Procedure there waslis no scope to file revisional application before this court challenging the said order and, as such, this Rule cannot be maintained.

Abu Bakar Siddique vs Md Khorshed Alam 54 DLR 75.

Order XX rule 12-

Where a suit is for the recovery of possession of immoveable property and for rent or mesne profits the Court may pass a decree, inter alia, for the rent or mesne profits which have accrued on the property during a period prior to the institution of the suit.

Primal Ranjan Das vs Nasima Khatun 49 DLR (AD) 144.

Code of Civil Procedure, 1908 (Order XLI-XLVII)

Code ofCivil Procedure, 1908

Order XLI rule 1-

SCCsuit-Absence of framing of issue on relationship of landlord and tenant-Thoughno issue was framed specifically on this point, it is clear from the judgmentthat the sec Judge has taken into consideration the main points and decided thesame as if there was an issue on the points and hence the judgment cannot beassailed only for not framing specific issue.

JogeshChandra Pal vs Ershad Hossain Choudhury 43 DLR 170.

Order XLI rule 1-

Review-Itsscope after leave petition is made before the Appellate Division-The AppellateDivision having given an exhaustive reasoning while disposing of the petitionfor leave to appeal, the judgment of the High Court Division has merged intothat of the Appellate Division-High Court Division is no more in seisin of thematter. In this view the Review petition is not competent.

DC,(Revenue) Sylhet vs Sudhir Chandra 44 DLR 549.

Order XLI rule 2-

With theleave of the court any ground can be urged before the court, and particularly aground on a question of law can be urged at any stage of the proceeding,provided the other side is heard on the said ground without being prejudiced.

Abdur Rahmanvs Tazlul Karim Sikdar and others 48 DLR 361.

Order XLI rules 4 and 5-

The defendantnon-appealing-respondent-petitioner who claims his interest through the othercontesting defendant-appellants on common grounds of interest in the appeal haslocus standi to file the application for stay of futher proceedings of theExecution Case. But the same has been filed with unreasonable delay and suchinordinate delay has not been satisfactorily explained. It is not a fit casefor granting stay on such belated application.

Bangladeshvs Waker Ahmed and others 48 DLR 211.

Order XLI rules 4 and 20-

Non-appealingdefendant - Condition for impleading such a defendant in the appeal-An appealcan be filed by some of the defendants when it proceeds from a ground common toall the defendants. But the appeal which was incompetent at its inception foromission to implead a necessary party would remain incompetent till the end ofit, unless otherwise during the pendency of the appeal necessary parties arebrought on record.

Anwara Begumvs Shahanewaz 43 DLR (AD) 156.

Order XLI rule 5(1)-

DistrictJudge is vested with the jurisdiction to pass an order of ad interim stay afteradmission of an appeal and in doing so he need not hear the other party.

Reza vsExecutive Engineer, Facilities Department, and others 50 DLR 434.

Order XLI rule 5-

The jurisdictionof the District Judge to pass an ad interim order pending disposal of an appealcan hardly be questioned.

ShafiuddinSarwar vs Dhaka Club Limited and others 45 DLR 753.

Order XLI rule 5-

At the timeof admission of appeal Appellate Court has got the jurisdiction to pass anorder staying operation of ad interim injunction passed by the trial Court.

Abdul Latifvs Chairman, Governing Body, Sher-e-Bangla Balika Mahavidyalay & others 46DLR 336.

Order XLI rule 5(3)-

Circumstanceswhen an order staying execution of the decree can be made by the Court.

Under OrderXLI, rule 5(3) no order for stay of execution shall be made unless the Courtmaking it is satisfied (a) that substantial loss may result to party applyingfor stay of execution unless the order is made; (b) that the application hasbeen made without unreasonable delay; and ( c) that security has been given bythe applicant for the due performance of such decree or order as may ultimatelybe binding upon him.

AKM ShahidurRahman vs Md Mafizullah Master 38 DLR279.

Order XLI rule 5(3)(c) –

Stay ofexecution of the decree by the appellate Court when may be ordered. Order XLI,rule 5 of the Code of Civil Procedure has conferred power upon the appellateCourt to stay execution of the decree or order appealed from, provided suchcourt is satisfied with the circumstances envisaged in clauses (a), (b) and (c)of sub-rule(3). The applicant should make out a case that refusal to stayoperation of the order appealed from may result in a substantial loss to him.

Afruz Miahvs Siraj Mia 39 DLR 360.

Order XLI rule 5(3)(c) –

'Substantialloss' may result to the party applying for stay of execution-explained.Substantial loss is a loss which is more than what should ordinarily resultfrom the execution of the order in the normal circumstances. It must be atangible loss and not a mere annoyance to the feelings. In deciding thequestion as to whether refusal to stay would result in a substantial loss tothe party, who sought for the stay, the court should consider the nature of theproperty, the character of the possession and the past enjoyment of theproperty. The disturbance of the appellant's possession in the hotel inquestion is itself a substantial loss and their such possession was required tobe protected till final decision in appeal on the findings arrived at by thetrial Court in appointing the receiver.

It canhardly be disputed that to run a residential hotel certain special skill inthat business is required. Ordinarily no unskilled person should be allowed bythe court to take over the management of such business which may be likely tocause damage to the parties interested therein.

Afruz Miahvs Siraj Mia 39 DLR 360.

Order XLI rule 5(3)(c) –

Appointmentof a receiver needs stronger case. The principles of granting temporaryinjunction and that of appointment of receiver although are based upon the samejudicial principles, but appointment of receiver needs a stronger case thanthat of for temporary injunction. The order of appointment of receiver, aspassed by the trial Court, is an incomplete one as remuneration of the receiveralong with other terms of his appointment are yet to be incorporated beforegiving effect to the same.

Afruz Miahvs Siraj Mia 39 DLR 360.

Order XLI rule 5(4)-

The Courtmay or may not hear the decree-holder (respondent) when the stay matter isheard and finally disposed ofThe Court would bear in mind while deciding thestay matter that the decree-holder cannot be denied the fruit of his decree.

AKM ShahidurRahman vs Md Mafizullah Master 38 DLR 279.

Order XLI rule 12-

There is noprovision of law for allowing appeal without serving any notice to therespondents.

Abdul WahabBiswasvs Abdul Matin Miah & others 53 DLR 196.

Order XLI rule 14(3)-

The provisionsof the Code not inconsistent with the Order being made applicable to ElectionPetition and the appeal being the continuation of the Election petition, theprovisions of the Code which do not bar dispensing with service of notice tothe noncontesting parties are applicable to appeal arising out of electionpetition.

MoulanaDelwar Hossain Saydee vs Sudhangshu Shekhar Halder and others 51 DLR (AD) 171.

Order XLI rule 14(3)-

Order XLI,rule 14(3) of the Code has given ample power to the High Court Division todispense with the service of notice upon the non-contesting respondents.

Shahe Alam(Md) vs Md Golam Sarwar and others 52 DLR (AD) 164.

Order XLI rules 17(1) and 19-

Under OrderXLI, rule 17 the Court is authorised to dismiss an appeal: but not authorisedto consider an appeal in the absence of the appellant and decide it on merits.If the appeal is dismissed on merits, it will be treated as a dismissal fordefault, against which appeal lies under rule 19 of Order XLI.

Manoo Miahvs Ahmed Khan 39 DLR 119.

Order XLI rule 19-

Inentertaining an application under Order IV, rule 19 CPC District Judge did notover-step his boundaries. He acted completely within his jurisdiction and wasfully empowered to do so as the principal Civil Court of Original CivilJurisdiction.

MuktadHossain Majumder vs Abul Bashar Majumder 38 DLR 41.

Order XLI rule 19-

DistrictJudge exercises power of an appellate Court. In spite of incongruity of arevisional application being available to a party aggrieved against thesubstantive decision of the District Judge on the Election Appeal and of therebeing a provision for appeal in the case of a rejection of application underOrder XLI, rule 19 CPC, the District Judge will continue to exercise all thosepowers which as an appellate Court has been vested in him under the Code ofCivil Procedure.

MuktadHossain Majumder vs Abul Bashar Majumder38 DLR 41.

Order XLI rule 19-

There is noauthority in support of the proposition that order of dismissal of a suit fordefault cannot be passed without waiting till before the end of the day.

Abdul Mannanvs Abdul Aziz 46 DLR 477.

Order XLI rule 19-

The previousconduct of the respondent may. be reprehensible but the matter (restoration ofthe appeal) cannot be decided on the ground of mere previous conduct. Whetherhe was prevented by sufficient cause from appearing when the appeal was calledon for hearing will determine the outcome of the proceeding under Order XLI,rule 19 CPC.

Mrinal KantiGuha & others vs Brajendra Lal Dhar & others 44 DLR (AD) 9.

Order XLI rule 19-

Inherentpower of the court cannot be invoked to enable the court to break through clearprovision of the Limitation Act.

Sufia Khatunand others vs Abdul Majid and others 45 DLR 584.

Order XLI rule 19-

Recording ofa finding of satisfaction of the Court regarding the existence of sufficientcause preventing the appellant-petitioner from appearing before the Court whenthe appeal was called on for hearing following which the appeal was dismissedfor default is a requirement of law. Readmission of appeal cannot be madeignoring this provision of law.

MatiurRahman Bepari vs Wazuddin Bepari & others 52 DLR 450.

Order XLI rule 19-

The word"proved" is sufficiently indicative of taking evidence as to the existenceof sufficient cause to pass an order under Order XLI rule 19 of the Code.

Raisuddin(Md) vs Sitaram Bhar and others 53 DLR I3I.

Order XLI rule 20-

Non-appealingdefendant-Condition for impleading such a defendant in the appeal-An appeal canbe filed by some of the defendants when it proceeds from a ground common to allthe defendants. But the appeal which was incompetent at its inception foromission to implead a necessary party would remain incompetent till the end ofit, unless otherwise during the pendency of the appeal necessary parties arebrought on record.

Anwara Begumand others vs Shahanewaz and another 43 DLR (AD) 156.

Order XLI rule 22-

Respondentcan urge a point decided against him in appeal under Order XLI rule 22 CPCwithout preferring cross objection—Question of limitation being a question oflaw can be urged as a matter of law.

MonindraMohan Kar vs Ranadhir Datta 38 DLR 240.

Order XLI rule 22(1)-

Limitation-Modeof calculation-Superficially there is hardly any distinction between 30 daysand one month of limitation provided for in these laws. By judicialinterpretation it has been held that the two are not identical. The mode ofcalculation on the basis of 30 days and that on the basis of one month aredifferent as approved by the Appellate Division of our Supreme Court.

NationalBank Limited vs Sunil Kumar Biswas 45 DLR 547.

Order XLI rule 22(1)-

Theplaintiff having filed no cross-objection against the finding of the trialCourt as to fabrication of the Kabuliyat and additional payment, the finding isholding good.

SheikhSalimuddin vs Ataur Rahman 43 DLR 18.

Order XLI rule 22(4)-

When anappeal abates (not dismissed) the cross-objection cannot be heard.

Abdul Mabudvs Shafique Ahmed 38 DLR 364.

Order XLI rule 23-

Remand isnot to be granted as a matter of course-when registration was done undersection 60 of the Registration Act and the requirement oflaw was fulfilled;prayer of remand does not merit consideration as the defendants did not adduceany evidence to rebut the presumption attached to the registration made underlaw.

ADC, Rev andAsst. Custodian Vested Property, Chandpur vs Tafurnessa 41 DLR (AD) 124.

Order XLI rule 23-

Co-sharersin a partition suit-Remand in the interest of justiceThe appellants produceddocuments in support of their case though they, women and minors being heirs ofplaintiffs brother, could not put any witness in the box for want of properlegal advice-A case for remand has been made out.

JobedaKhatun vs Hamid Ali 40 DLR (AD) 101.

Order XLI rule 23-

The HighCourt Division discharged the Rule upon holding that there was no ground fordirecting a remand as prayed for by the appellants.

Jobeda Khatunvs Hamid Ali 40 DLR (AD) 101.

Order XLI rule 23-

Documentsproduced by the appellants were lawfully admitted into evidence afterdispensing with the formal proof. Evidentiary value of the documents in theabsence of oral evidence supporting the defendant's case in the writtenstatement.

JobedaKhatun vs Hamid Ali 40 DLR (AD) 101.

Order XLI rule 23 –

Disputebetween the co-sharers should be resolved in one trial-in the presence of allco-sharers and saham allotted accordingly-Intervention role of the Court isencouraged in the more progressive societies. High Court and the lower appellateCourt should have intervened either in appeal or in revision to allow theappellants to examine witness for the purpose of complete adjudication betweenthe co-sharers.

JobedaKhatun vs Hamid Ali 40 DLR (AD) 101.

Order XLI rule 23-

Terms of remandorder-The suit should be decided by taking into consideration the case of theappellants and they will be permitted to examine witness in support of theircase and for connecting documents already proved by them.

JobedaKhatun vs Hamid Ali 40 DLR (AD) 101.

Order XLI rule 23-

Remand tothe trial Court to decide the respective saham of all cosharers in thepartition suit upon examination of documents and witness afresh-Appellants didnot examine any witness. They filed certain documents marked Exts "Ka"to "Uma" upon dispensing with their formal proof.

JobedaKhatun vs Hamid Ali 40 DLR (AD) 101.

Order XLI rule 23-

As the factsof the case have been changed, a remand of the suit has become inevitable inorder to ascertain the facts of the case.

Abdus Sobhanvs Jamiruddin Jaigirdar & others 40 DLR 488.

Order XLI rule 23-

Remandingthe case back for retrial instead of disposing of the appeal himself, theDistrict Judge has shirked his responsibility. He could have avoided givingfragmentary decision which hinders justice.

The learnedDistrict Judge has, instead of disposing of the appeal finally and completely,remanded the case to the lower Court for retrial in the light of hisobservation after giving opportunity to the tenant to prove into evidence histwo trade licences at the appellate stage. Instead of shirking hisresponsibility in this way, the learned District Judge could have done ithimself in accordance with law as it has been discussed earlier, and therebycould have avoided giving fragmentary decision to the detriment of the interestof both the parties. This kind of avoidable fragmentary decision hindersjustice and tends to frustrate its very purpose, far from advancing its cause.

Zehad Ali vsKhorshed Ahmed 41 DLR 336.

Order XLI rule 23-

Defence pleaof possession from 1947 and 1950 respectively—Plea of adverse possession—Pleanot accepted by the lower appellate Court-Plaintiff did not adduce evidence toprove the claim of the possession of the judgment-debtors in the suit and since1947 & 1950 till the auction-sale in 1964- This aspect having being notconsidered by the lower-appellate Court the decision has been vitiated.

Tajidullahvs Sona Mia 41 DLR 233.

Order XLI rule 23-

Concurrentwrong finding of fact on the factum of possession by the courts below in favourof the plaintiffs-It has occasioned a failure of justice-Remand to the trialCourt for retrial according to law and observations made.

Tajidullahvs Sona Mia 41 DLR 223.

Order XLI rule 23-

The Courtwill not decide a point especially in the interlocutory matter which will notadvance the cause of justice. It will merely delay the process of coming to aconclusion as to claim and counter-claim which can only be thrashed out in thepending suit.

The DhakaDyeing and Manufacturing Co Ltd vs Agrani Bank 42 DLR (AD) 60.

Order XLI rules 23 –

Suits areremanded to the trial Court to allow the defendants to produce these evidenceas additional evidence which will enable the plaintiff to give challenge to theclaim.

Bangladesh& ors vs Dhaka Lodge Welfare Society 40 DLR (AD) 86.

Order XLI rule 23-

Theappellate Court cannot direct the trial Court on remand to consider theapplication for withdrawal of the suit after the suit had already been decreedby the trial Court.Tn allowing the application the trial Court must come to afinding that the suit suffers from formal defect.

Pradip KumarMalakar vs Birendra Chandra Malakar and others 45 DLR 422.

Order XLI rule 23-

For thelaches of the indolent defendants the petitioner cannot be made to suffer forfacing a new trial after the suit has been disposed of on merit.

Abu SayeedSheikh and othes vs Md Majibur Rahman and others 51 DLR 289.

Order XLI rule 23-

Remand-Thepresent petitioner took no step for giving additional evidence before theappellate Court and also has not taken any step for calling for the record ofthe earlier suit. What the appellate Court did was nothing but giving anopportunity to the defence to fill up the lacuna which the law does not permit.

Abdus Sobhan vs Anwar Rahim & others 53 DLR (AD) 110.

Order XLI rule 23-

Remand ascontemplated under Order 41 rule 23 of the Code of Civil Procedure was not ofmatter of course or to fill in the lacuna in any party's pleading.

Akitullahand others vs Zafala Begum and others 54 DLR (AD) 74.

Order XLI rule 23-

Where thetrial Court has decided the suit on merit the revisional court has no power toremand by shirking its duty of writing the judgment afresh.

Hosna AraBegum and others vs Mantaj Ali and others 55 DLR (AD) 20.

Order XLI rule 23-

The defectwas brought to the notice of the pre-emptor by the pre-emptee at the earliestopportune moment and yet the preemptor took no step to amend his plaint andmake all the co-sharers of the 'case holding' parties in the case. TheSubordinate Judge, when he found defect of parties, ought to have dismissed thecase, instead of remanding it to the Court below.

MadinullahMiah vs Md Abdul Mannan & anr 54 DLR 507.

Order XLI rules 23-25—

When thetrial Court, after framing the issues and giving the parties opportunity toadduce evidence, disposes of a suit on merit, the appellate Court in thesubsequent appeal therefrom, cannot remand the case back to the trial Court forits disposal on merit anew.

MadinullahMiah vs Md Abdul Mannan & anr 54 DLR 507.

Order XLI rules 23 and 27-

Practice andProcedure-Practice of deciding an appeal partly leaving some question at issuebetween the parties undecided and sending back the suit on remand for decisiondefeats the purpose of justice.

This kind ofpractice of deciding an appeal partly leaving some questions at issue betweenthe parties undecided, and sending back the suit on remand for decisionthereon, where the lower appellate Court itself could have done it inaccordance with law, is to be deprecated and discouraged as it tends to delaythe administration of justice and thereby to defeat its purpose.

Zehad Ali vsKhorshed Ahmed 41DLR336.

Order XLI rules 24 and 31-

The court ofappeal below being the last court of facts is required to consider the materialevidence either to affirm or reverse the judgment of the trial Court afterassigning reasons. The appellate Court shirked its responsibility in sendingback the case on remand without itself deciding the appeal on merit. The actionof the Court of appeal below is deprecated and the case is sent back on remandto it for deciding the appeal on merit.

BenodeBehari Mondal vs Arabinda Sarder and others 49 DLR 72.

Order XLI rule 27-

Power toentertain additional evidence is intended to be exercised when the Courtconsiders itself unable to pronounce judgment without further evidence. If theCourt can deliver judgment, additional evidence should not be admitted.

Abdul Awalvs Abdul Hamid 45 DLR 362.

Order XLI rule 27-

Productionof additional evidence-The power to allow additional evidence is discretionary.Although a court is required to record reasons, even if reasons are notrecorded, evidence recorded will not be inadmissible if the reception ofadditional evidence can be justified under rule 27.

CapitalProperties Ltd vs Bangladesh 44 DLR 308.

Order XLI rule 27-

Admittedlyno prayer was made before the trial Court for obtaining the opinion of thehand-writing expert on the execution of bainanama and then such opinion was notneeded by the courts for pronouncement of judgment. The appellate Courttherefore rightly rejected the prayer for referring the document for expertopinion.

SerajulIslam (Md) vs Binoy Bhusan Chakraborty and others 47 DLR 248.

Order XLI rules 27-

Substantialcause' explained-Additional evidence may be allowed to be led at the appellatestage if facts disclose that one of the parties to the proceedings withheldsome material evidence to prejudice of the other party which the other partygot to know and secured by having access to them at a later stage.

RahelaKhatun vs Fayezuddin Shah 38 DLR (AD) 6.

Order XLI rule 27-

Section 20of the Family Courts Ordinance is a bar to the application of the CivilProcedure Code in Family Court proceeding with the exception of sections 10 and11 under the Family Courts Ordinance. The lower appellate Court cannot takeevidence as the provisions of appeal in the Family Courts Ordinance does notprovide for taking of evidence. It being a special law must be appliedstrictly. The appellate Court cannot also remand the case to the. Trial Courtas the Family Court Ordinance does not provide for any such provision.

Saleha Begumvs Dilruba Begum 53 DLR 346.

Order XLI rule 31-

The objectof rule 31 of Order XLI of CPC is that the 1st Appellate Court must considerindependently the relevant salient points which arose for adjudication and todiscuss evidence led by the parties as well as point of law. In the instantcase the first Appellate Court did not discuss each issue separately nor gave anyindependent findings on each issue after assessment of evidence· on merit.Obviously, it suffers from patent illegality and material irregularity whichwas violative of the provision of Order XLI rule 31 of CPC.

DewanMohammad Safare Ali vs Bangladesh 43 DLR 221.

Order XLI rule 31-

Contents ofappellate Judgment-Appellate judgment reversing that of the trial Court shouldbe adequate and satisfactory. It must contain definite findings on thequestions involved and must give reasons for reversing the decision of thetrial Court.

AnwarHossain vs Abdul Hossain Molla 44 DLR 79.

Order XLI rule 31-

Firstappellate judgment-It has to enable the High Court Division in Second Appeal tojudge whether the lower appellate Court has properly appreciated and decidedthe case.

AnwarHossain & others vs Abul Hossain Molla & others 44 DLR 597.

Order XLI rule 31-

The HighCourt Division failed to consider the evidence on record afresh in reversingthe finding of the trial Court and as such the impugned judgment is not sustainablein law.

Bina Raniand another vs Shantosh Chandra Dey 51 DLR (AD) 81.

Order XLI rules 31 and 33-

It is theduty of the lower Appellate Court to discuss the evidence led by the parties aswell as the points of law involved and to give findings thereon with reasons.

AftabuddinFakir vs Sowdagar Rabi Das 43 DLR 42.

Order XLI rule 31 and section 115 –

Reversal ofthe trial Court's findings that "Pitamber and after his death his heirshad been possessing the suit land" by the learned Sub-Judge by ignoring altogethermaterial facts and documents. The learned Sub-Judge also held without any basisthat "It is presumed that Samad Ali's tenancy right continued" thoughthere is no evidence of possession of the plaintiff predecessors' right fromthe beginning of the present century upto 1963 when the plaintiffs allegedlypurchased. These findings as to Samad Ali's and plaintiffs' possession cannotbe legally sustained. Further the learned. Sub-Judge without considering thefinding of the trial Court that the plaintiffs failed to prove that thedefendant Nos. 4- 6 were the heirs of Samad Ali just in one sentence found that"the plaintiffs have sufficiently proved that their vendors are heirs ofSamad Ali." Such a finding ought not to have been allowed to stand in revisionwhen the same was raised as the first ground. Appeal allowed.

Nur Ahmed vsNur Ahmed 40 DLR (AD) 175.

Order XLI rule 33-

Theappellate Court can pass any order as the case may require"notwithstanding that the appeal is as to part only of the decree and maybe exercised in favour of all or any of the respondents or parties althoughsuch respondents or parties may not have filed any appeal or objection".

Md OsmanGani vs Kulsum Bibi 37 DLR (AD) 63.

Order XLI rule 33-

AppellateCourt has the power to assess compensation which escaped the notice of thetrial Court and do complete justice to one even in the absence of his filing ofcrossobjection.

Sonali Bankand another vs Md Harun 52 DLR 75.

Order XLI rule 33-

This courtcan pass a decree or order which ought to have been passed or made as the casemay require and this power may be exercised notwithstanding the fact that thedefendant-respondent has not filed any appeal or objection.

Sonali Bankvs Rana Oil Mill and ors 52 DLR 130.

Order XLI rule 33 & Order XLVII rule 1 –

When theoriginal judgment was passed there was omission on the part of the Court toconsider the provision of Order XLI rule 33 and such omission constituted asufficient ground analogous to Order XLVII rule I and for such omission the Courtwas not incompetent to reconsider the matter after judgment.

MathuraMohan Pandit being dead his heir Sudhir Chandra Das vs Hazera Khatun 48 DLR190.

Order XLII rule 1-

It is trueno appeal was preferred against the order of dismissal of the suit on questionof its maintainability but a review application was preferred. Since the orderof dismissal was absolutely illegal and without jurisdiction, no technicalpoint should stand in the way of doing substantial justice and, as such, theorder of dismissal of the suit is set aside.

MA Majid vsM Ahmed, Executive Engineer & another 46 DLR 258.

Order XLII rule 1-

As to thenew concept of 'proportionality' as a ground for judicial review it isabsolutely a new concept to our jurisprudence - In accepting it, this courtshall have to accord different weights to different ends or purposes anddifferent means which cannot be allowed in a review.

EkusheyTelevision Ltd and another vs Dr Chowdhury Mahmood Hasan and ors 55 DLR (AD)26.

Order XLII rule 1-

What is requiredto be protected is the interest of the general public from abuse of power bythe executive, the most eloquent aspect of this case-In public interestlitigation the court will lean to protect the interest of the general publicand the rule of law vis-a-vis the private interest-Where the rule of law comesinto conflict with third party interest the rule of law will, of course,prevail.

EkusheyTelevision Ltd and another vs Dr Chowdhury Mahmood Hasan and ors 55 DLR (AD)26.

Order XLII rule 2-

Dismissal ofsuit for non-payment of cost whether sustainable - On hearing about non-paymentof adjournment cost the petitioner immediately paid the cost. For noncompliancewith the order of a Court for payment of cost a separate proceeding can bedrawn but such default cannot be a ground for dismissal of the suit. In thefacts of the case the Court below has committed an error of law in not allowingthe review petition for restoration of the suit.

Abdul Jalilvs Abdul Quddus 45 DLR 18.

Order XLllI rule 1-

Order XLIII,rule I does not say that an order accepting Advocate Commissioner's report isappealable.

Under theprovisions of section 104 of the Code of Civil Procedure the appealable ordersare specified in Order XLIII, rule 1, CPC. Order XLIII, rule I of the CivilProcedure Code does not say that an order accepting Advocate Commissioner'sreport is appealable and that being so the learned Additional District Judgehas obviously erred in rejecting the petitioner's application under section 151CPC for vacating the order dated 20-9-78 accepting Commissioner's report as notmaintainable on a wrong notion and misconception of law that the order dated20-9-78 is appealable.

Rehanuddinvs A Hakim 39 DLR 21.

Order XLIII rule 1(a)-

Takingrevision in a matter in which appeal lies-High Court Division assumingrevisional jurisdiction taking into consideration circumstances of exceptionalnature, in a matter in which appeal lies, cannot be accepted as a generalprinciple for determining the point as to whether revision application lies tothe High Court Division against the order from which appeal lies before theDistrict Judge. The present case having been arisen from the order againstwhich appeal has been provided, revision is not maintainable, no matter whetherthe appeal has been provided for either before the District Judge or the HighCourt Division.

Mansur Alivs Janata Bank 43 DLR 394.

Order XLIII rule 1(c)-

Miscellaneouscase was not dismissed on 11-3-1984 for non-appearance but for not putting inthe cost within time- The order dated 11-3-1984 was neither an order rejectingthe miscellaneous case for default nor rejecting the same on merit-Hence anappeal under Order XLIII, rule l(c) is not contemplated for such an order.

RafiqulIslam vs Abul Kalam 42 DLR 19.

Order XLllI rule 1(c)-

Order XLIII,rule 1 of The Code contains provisions for appeal against an order passed in asuit. Order XL III rule 1 ( c) does not provide for an appeal against an orderrejecting a petition laid under Order IX, rule 9 of the Code directed forrestoration of a preemption proceeding on setting aside order of dismissal.

HaripadaMandal vs Bidhan Chandra Mondal 55 DLR 515.

Order XLIII rule 1(d)-

Order ofdismissal for default being an appealable order under Order XLIII, rule 1(d),the Court cannot interfere under section 151 CPC and pass an order restoring acase to file.

Md M HossainMollah vs Asstt. Deputy Custodian 37 DLR 287.

Order XLIII rule 1(d)-

Maintainabilityof application under section 151 CPC for setting aside an order cancelling anearlier order dismissing a Miscellaneous Case under Order IX r. 13. The effectof an order of dismissal of the Miscellaneous case for default is one ofrejecting an application to set aside a decree passed ex parte. It is not anorder passed on merit, but ex parte. The view taken by the High Court Divisionthat appeal lies in both cases is correct. This is not to say that theapplication under section 151 CPC is barred under all circumstances. Since theapplication under section 151 in the present case was filed 7 days afterdismissal of the miscellaneous case for default without any explanation for thedelay, such application could not be justified.

Abdul KaderChowdhury vs Nurul Islam 43 DLR (AD) 128.

Order XLIII rule l(i)(ii)(iii)-

An orderreleasing a property from attachment as also an order disallowing a claim toattached property are now appealable after the amendment of 1983.

BangladeshShipping Corporation vs Rafique Ahmed 40 DLR 36.

Order XLIV rule 23-

There is noprovision that after remand of the suit to the trial Court, plaintiff againshall have to serve notice/summons upon defendant who was contesting the suit.

Nurul Islam(Md) and others vs Md Maniruddin Bepari and others 49 DLR 35I.

Order XLVI rule 7-

The suitfalling within the exclusive jurisdiction of the Small Cause Courts Judge buterroneously tried by a court other than the sec Judge suffers no legalinfirmity and the trial cannot be vitiated. Section 23 of the Small CauseCourts Act negatives the proposition that section 16 of the Act altogetherdeprives the civil Court of the jurisdiction conferred by section 9 of the Codein respect of the small causes suit.

WahidaRashid vs Miran Muhammad Zahidul Hoque 43 DLR 115.

Order XLVII rule 1-

An orderupon an application under Order XLVII, rule 1 CPC is not a decision within themeaning of sub-section (4) of section 29 as it does not relate to certaindispute on merits.

In theinstant case the learned District Judge also committed an error in entertainingthe present appeal from an order rejecting the review contrary to the provisionof Order XLIII, rule 1 clause (w) inasmuch as no appeal lies under Order XLIII,rule 1 (w) CPC from an order of rejection of an application for review.

Abdus Salamvs Sirajul Islam 42 DLR 27.

Order XLVll rule 1-

The scope ofreview under Order XLVII, rule 1 CPC is very limitedNon-consideration ofevidence which could have been led in the Court below as evidence is not aground for review when it tends to the re-opening of the whole matter and willbe tantamount to sitting as a Court of appeal on its own order by the Court.Failure on the part of a judge to accept properly the submission of the learnedAdvocate resulting in an erroneous finding is not ground for review.

Ahmed Safavs Hamid Box 42 DLR 209.

Order XLVII rule 1-

Provisionsof Order XLVII rule 1 CPC and rule 26 of the Supreme Court Rules are applicablein case of review by the Appellate Division of the Supreme Court. Rule 26 ofthe Supreme Court Rules provides 30 days for filing a review petition.

MahbuburRahman Sikder vs Mujibur Rahman Sikder 37 DLR (AD) 145.

Order XLVII rule 1-

Review ofits judgment by the Supreme Court (AD) is solely for the purpose of doingcomplete justice in a case, not for any academic purpose.

MahbuburRahman Sikder vs Mujibur Rahman Sikder37 DLR (AD) 145.

Order XLVII rule 1-

Judgment inconflict with the Constitution or of some law - Review mandatory.

MahbuburRahman Sikder vs Mujibur Rahman Sikder 37 DLR (AD) 145.

Order XLVII rule 1-

Normally theSupreme Court's (AD) judgment is final to be disturbed only in exceptionalcases.

MahbuburRahman Sikder vs Mujibur Rahman Sikder 37 DLR (AD) 145.

Order XLVII rule 1-

Review caseto be governed by Order XLVII, rule 1 CPC and rule 26 of the SC Rules.

MahbuburRahman Sikder vs Mujibur Rahman Sikder 37 DLR (AD) 145.

Order LVII rule 1-

NeitherParliament nor the Court has untill now made any provisions against exercisingthe power of review suo motu.

MahbuburRahman Sikder vs Mujibur Rahman Sikder 37 DLR (AD) 145.

Order XLVII rule 1-

The learnedMunsif acted as if as an appellate Court and not as an original Court applyingthe provisions of Order XLVII rule 1 CPC while disposing of the matter. Thelearned District Judge without applying his mind simply dittoed the order. Theimpugned order is not sustainable in law.

Arun Bhowmicvs Salim Reza 40 DLR 199.

Order XLVII rule 1-

New andimportant matter which was not within the knowledge of the petitioner should bebrought to the notice of the Court when order is made.

Arun Bhowmicvs Salim Reza 40 DLR 199.

Order XLVII rule 1-

Thepetitioner seeking relief in a review petition should prove certain materialsi.e. new and important matter which was not within his knowledge when theimpugned order was made.

Arun Bhowmicvs Salim Reza 40 DLR 199.

Order XLVII rule 1-

In order toget the benefit of section 14(2) of the Limitation Act the petitioners mustalso show that the Appellate Division was unable to entertain the CivilPetition because it suffered either from a defect of jurisdiction or other causeof a like nature.

Held: Alsoin consideration of Articles 103 and 104 of the Constitution that the AppellateDivision had no defect of jurisdiction in entertaining the Civil Petition.

FurtherHeld: The petitioner's application was barred by limitation, as they were notentitled to the protection of section 14(2) of the Limitation Act.

Falu Meah vsSafar Ali 40 DLR 165.

Order XLVII rule 1-

The Courthas got the liberty to commit mistake in construing a document and the mistakeis not amenable to review.

Abdul HalimBepari vs Khokan Chandra Datta 46 DLR 264.

Order XLVII rule 1-

Review-Formulation of points for determination-Nonfixation of proper points fordetermination has ceased miscarriage of justice in the instant case. TheSubordinate Judge is directed to re-hear the application for review on fixationof points for determination and decide the same in accordance with law.

Afsar (Md)vs Moulvibazar Paurashava 43 DLR 589.

Order XLVII rule 1-

The matterof rate of conversion of US dollar into Bangladesh currency was not argued atthe time of hearing of the appeals. The matter cannot be decided withouthearing the parties afresh. This court's judgment is therefore not amenable toreview on this score. It will be an appeal in disguise if a fresh argument isentertained. Our omission to allow rate of conversion on the date of paymentseems to be partly circumstantial and partly deliberate. An appeal before thisCourt on the specific point of rate of conversion would have brought the issuein a sharp focus and we could have given our thoughts to it. This is thecircumstantial part. The deliberate part is that even in the Table produced bythe learned Counsel for the petitioner at the hearing of the two appeals it wasnot indicated that the rate of conversion as on 1-7-77, shown in the Table, wasonly tentative and that a further amount in Bangladesh currency would be due ifthe rate.of conversion on the date of payment was ordered. When the petitioneris unmindful of Article 28, a court of law has no independent duty to enforceArticle 28, like section 3 of the Limitation Act. If an applicant wantsenforcement of Article 28 and any contract in that behalf it has to ask for it.

BangladeshShilpa Rin Songstha vs Haque Brother (Carbide) Ltd 46 DLR (AD) 39.

Order XLVII rule 1-

Review-Extentand scope-The right to review any decision of a Court, like the right toappeal, is a substantive right and not a mere matter of procedure. Thereappears to be no rule making the provision of section 114 CPC inapplicable toHigh Court Division in exercise of its original civil jurisdiction.

KhapanBittahin Co-operative Society Ltd vs Nagendra Mahisya Das, Secretary, NijkuruaMatsyajibi Samabaya Samity Ltd and others 45 DLR 502.

Order XLVII rule 1 –

When thereis an omission on the part of a court to take notice of a provision of law anapplication for review under Order XLVII, rule 1 CPC is competent.

MathuraMohan Pandit being dead his heir Sudhir Chandra Das vs Hazera Khatun 48 DLR190.

Order XLVII rule 1 –

Principlesof law settled by this Court normally operate prospectively unless those areretrospectively made applicable by express words.

Jalaluddinalias Faruque and others vs Ehsanuddin and others 49 DLR (AD) 116.

Order XLVII rule 1 –

A review wasnever meant and allowed to be utilised as another opportunity for rehearing thematter which is already closed by a final judgment.

NurulHussain vs Government of the People's Republic of Bangladsh 49 DLR (AD) 108.

Order XLVII rule 1 –

Unless aprayer for review is based on the grounds mentioned, the Court will not sit onthe matter again for a rehearing or further hearing which is already concludedby decision.

Fazle Karimand others vs Government of Bangladesh 48 DLR (AD) 178.

Order XLVII rule 1 –

Review willlie where a party to a suit or proceeding failed to adduce evidence necessaryfor disposal of the suit or a proceeding or the court have missed an importantevidence to consider, which if considered, the result of the suit or dteproceeding could have been different.

Solaiman(Md) vs Begum Rezia Khatoon 49 DLR 437.

Order XLVII rule 1 –

New andimportant matter or evidence must have a material bearing, on the merits of thecase. Otherwise, the court will not permit discovery of the new and importantmatter or evidence to be used for review of the judgment.

Halima Jamanand others vs Government of Bangladesh 50 DLR 352.

Order XLVII rule 1 –

Review maybe granted only for sufficient grounds akin to those of Order XLVII rule 1 ofthe Code. To permit a review on the ground claimed by the petitioners willamount to rehearing of the matter and our sitting on appeal over our ownjudgment which is not permissible in law.

Abul Hossainand 3 others vs Bangladesh represented by the Secretary, Ministry of Land andothers 51 DLR (AD) 116.

Order XLVII rule 1 –

There beingspecific finding and decision in the appellate judgment on the point ofmaintainability of the suit after considering the materials on record, the samepoint cannot oe a ground for review.

FatemaKhatun vs Wach Khatun and others 51 DLR 28.

Order XLVII rule 1 –

Nojurisdiction is available to a Court to interfere with a judgment on the groundthat there is absence of proper assessment of evidence.

FatemaKhatun vs Wach Khatun and others 51 DLR 28.

Order XLVII rule 1-

Groundsaimed at taking another opportunity for rehearing of a matter cannot be allowedin review.

FatemaKhatun vs Wach Khatun and others 51DLR28.

Order XLVII rule 1-

A wrongdecision on interpretation of certain provision of law or principle laid downin a decision relied upon by a court are no grounds for review.

ZenithPackages Limited vs Member Labour Appellate Tribunal Dhaka and others 52 DLR(AD) 160.

Order XLVII rule 1-

Reconsiderationof points wrongly or rightly considered in an appeal decided by this Divisionwithout betraying apparent error on the face of record is no ground of reviewof a judgment.

GM, JamunaOil Company Ltd vs Chairman, Labour Court 53 DLR (AD) 28.

Order XLVII rule 1-

The HighCourt Division does not appear to have committed any error of law by not givinga chance to the petitioner to try its luck once again on the plea of discoveryof additional evidence.

IslamicFoundation Bangladesh vs Firoz Alam and others 53 DLR (AD) 48.

Order XLVII rule 1-

The generalprinciple is that in discharging the judicial function of the court it has theduty of resolving issues of law properly brought before it and once it is donethe finality is reached and once the finality is reached a judgment can bereviewed only on certain laid down principles.

EkusheyTelevision Ltd and another vs Chowdhury Mahmood Hasan and ors 55 DLR (AD) 26.

Order XLVII rule 1-

A review isby any means an appeal in disguise whereby an erroneous decision is reheard orcorrected-Its lies on patent error but no such patent error could be pointedout.

Mia LutfiHossain Khasru and others vs Bangladesh and others 55 DLR (AD) 74.

Order XLVII rule 1-

The taskbefore the court is not only to weigh or evaluate or reflect profound concernsand views but more, to ascertain and apply the law of the land on review as itnow stands understood.

EkusheyTelevision Ltd and another vs Dr Chowdhury Mahmood Hasan and ors 55 DLR (AD)26.

Order XLVII rule 1-

Thefundamental is that an error is necessary to be a ground for review but it mustbe one which is apparent on the face of the record, and so obvious that keepingit on the record will be legally wrong.

EkusheyTelevision Ltd and another vs Dr Chowdhury Mahmood Hasan and ors 55 DLR (AD)26.

Order XLVII rule 1-

If it can beshown that the situation differs from that which was taken for granted at thetime of hearing of the appeal or the petitions for leave to appeal the decisionin a review petition may be different. But no alternative situations werepresented before the Court at the hearing of the review petitions.

EkusheyTelevision Ltd and another vs Dr Chowdhury Mahmood Hasan 55 DLR (AD) 26.

Order XLVII rule 1-

Theelaborate arguments that have been advanced was done at the leave petitions butthose have come to an end with the rejection of the leave petitions by thepetitioners and cannot be reopened in a review petition.

EkusheyTelevision Ltd and another vs Dr Chowdhury Mahmood Hasan 55 DLR (AD) 26.

Order XLVII rule 1-

Omission toplace the relevant decision at the hearing of the suit or appeal is not amistake or error apparent on the face of the record so as to invoke theprovision of review.

AkbarHossain (Md) vs MD, Agrani Bank and others 54 DLR (AD) 21.

Order XLVII rule 1-

A review isby no means an appeal in disguise whereby an erroneous decision even if therebe is reheard and corrected but lies only for patent error.

Abul Hossainvs Jahiruddin 54 DLR (AD) 69.

Order XLVII rule 1-

Since thejudgment in the writ petition was obtained by the respondent writ petitionerbehind the back of the review petitioners adversely affecting their interestthe same is set aside on review.

MA Bari andothers vs Uttara Sarkari Officers Quarter Kallayan Samity & ors 55 DLR 289.

Order XLVII rule 1-

Provision ofArticle 102(2) or any other provision of the Constitution do not preclude theHigh Court Division either to re-consider or to review the correctness of itsjudgment upon fresh material(s).

SerajuddinAhmed and others vs AKM Saiful Alam and others 56 DLR (AD) 41.

Order XLIV rule 23-

There is noprovision that after remand of the suit to the trial Court, plaintiff againshall have to serve notice/summons upon defendant who was contesting the suit.

Nurul Islam(Md) and others vs Md Maniruddin Bepari and others 49 DLR 351.

Code of Civil Procedure, 1908 (Order XXI-XXII)

Order XXI-

Executing Court's power-To ascertain value of the part of the judgmentdebtor's building, which fell in the saham of the plaintiff, so as to compensate him at the plaintiff's cost falls outside the power of the Executing Court and as such the order - appointing an Advocate Commissioner has been rightly set aside by the High Court Division.

Tahmina Khatun vs Nurun Nahar 40 DLR (AD) 255.

Order XXI rule 3(i)-

Prohibitory injunction -Whether executable-A decree for permanent injunction can be enforced for its violation by taking recourse to the provision of Order XXI rule 32(i) of the CPC and not by a fresh suit. For the reason of avoiding multiplicity of proceedings such a decree should be enforced without taking recourse to a separate suit.

Safar Ali Miah vs. Badsha @ Siddique 45 DLR 483.

Order XXI rule 15-

Even where the dispute regarding discharge, satisfaction and execution of a decree arises between decree-holders inter se the dispute can be determined by the executing Court and no separate suit is necessary.

Rabindra Narayan Gope vs Nani Gopal Gope 43 DLR 540.

Order XXI rule 16 and Order XXII rule 10 –

Assignment of interest-When the decree was not finally drawn up there could not be any lawful objection in filing an application under Order XXII rule. 10 of the Code. The Court failed to consider this material aspect that in the suit preliminary decree was drawn and the suit was not completely disposed of and before that stage application for assignment of shares was filed. The High Court Division misdirected itself in holding that the application was one under Order XXI rule 16 by which the question to be decided is whether the applicant is the person entitled to execute the decree but that stage did not reach till then.

Manik Chand Bibi vs Abdul Mutakabbir Chowdhury 44 DLR (AD) 251.

Order XXI rule 19-

Equitable set-off can be claimed in a case where cross-demands arise out of the same transaction as well as in cases where the cross-demands may not arise out of the same transaction but they are so connected in the nature of circumstances that it would be inequitable to allow one party to execute his decree driving the other party to separate suit or proceedings.

Shankar Lal Das vs Janata Bank and others 54 DLR 371.

Order XXI rule 26-

The petitioner being a third party to the decree has no locus standi to maintain an application for stay of the execution proceeding and then the facts do not warrant exercise of discretionary power of the court to make an order of stay.

Aftab Ahmed vs Moinuddin Zaigirdar and another 46 DLR 173.

Order XXI rule 26-

Execution of decree has no nexus with the contempt proceedings drawn for disobedience to the Court's order. Therefore there is no ground to continue the stay of execution of decree after disposal of appeal on the plea of pending contempt proceedings.

Calmare Navigation Co Ltd vs Mohammad Nurul Hoque and another 51 DLR (AD) 35.

Order XXI rule 26-

Pendency of suit for specific performance of contract is no ground to stay execution of a decree for ejectment from the self-same premises.

Hazera Khatun vs Dr Md Enayetullah 52 DLR (AD) 33.

Order XXI rule 26-

When the summonses were duly served and accepted by the trial Court the decree-holder should be allowed to enjoy the fruit of the decree and for filing a subsequent suit further proceeding of the execution case cannot be stayed.

Jabed Ali Sheikh (Md) and others vs Md Abdus Sobhan Sheikh and others 55 DLR (AD) 64.

Order XXI rule 29-

This provision of the Code applies only in case of a person who challenges the decree under execution in a subsequent suit.

Abdul Hakim (Md) vs Genandra Nath Bashu Roy 47 DLR (AD) 95.

Order XXI rule 29-

Where a suit is pending in any Court against the holder of a decree of such Court at the instance of the judgment-debtor, the Court may stay execution of the decree until the pending suit has been decided. This contemplates the pendency of a suit between the decree holder and the judgment debtor in respect of the decree in question and it has no reference to any suit filed by a third party.

Abul Kalam and others vs Kajiluddin and others 49 DLR 569.

Order XXI rule 29-

A tenant cannot be permitted during the continuance of the tenancy to resist a suit for eviction by his landlord without surrendering his possession to his landlord.

Monowara Begum vs Atiqullah 51 DLR 550.

Order XXI rule 29-

The plaintiff being a stranger to the previous decree, got no locus standi to maintain any application for stay of the execution proceeding of the previous suit.

Goranga Bishnupriya and others vs Aftal Khan and others 52 DLR 172.

Order XXI rule 29-

The Subordinate Judge in proceeding with the title Suit is not the court within the meaning of Order XXI, rule 29 of the Code. He acted beyond his jurisdiction in granting stay of further proceeding of the execution case pending before the Senior Assistant Judge.

Golam Rabbani Khandaker (Md) and others vs Hamida Bawa Shamsul Sheikh 53 DLR 610.

Order XXI rule 29-

Since the petitioners were not parties in the Partition Suit and their suit being not by the judgment debtor against the decree holder of the court that passed the decree in the partition suit, provision of Order XXI rule 29 of the Code cannot be availed of by the petitioners.

Abul Bashar and others vs Prafulla Kumar Das and others 56 DLR (AD) 139.

Order XXI rule 29 read with section 151-

An application for stay is maintainable in the subsequent suit challenging the decree pending in the same Court for stay of the execution proceeding arising out of the decree between the judgment creditor and the judgment debtor.

Zagir Hussain vs Aminul Haque and others 51 DLR 425.

Order XXI rule 30-

After the Judgment debtors in their written objection admitted that they have no properties of their own to satisfy the decrees, civil imprisonment was the only method for enforcing decree of payment of money.

Pubali Bank vs Kalaroa Jee and Cold Storage Ltd Kalaroa and others 54 DLR 216.

Order XXI rule 32-

Prohibitory decree, violation of-When there is violation of a prohibitory decree there remains no decree to be enforced in the sense of execution-the violation is a fresh cause of action and the remedy lies in a separate suit.

Ajiran Nessa Bewa vs Abdul Mannan 45 DLR 66.

Order XXI rule 32-

Decree for injunction -The Deputy Commissioner and others got sufficient opportunity to obey the decree passed for permanent injunction. They having wilfully failed to obey the decree, action under Order XXI, rule 32 CPC is called for. Records be immediately sent down for implementing the judgment and to report compliance to the Registrar.

Selimuzzaman @ Selim and others vs DC, Sariatpur, District Sariatpur and others 44 DLR 545.

Order XXI rule 32-

Since an application under Order XXI rule 32 of the Code for violation of a decree for injunction is maintainable, the Single Bench decision holding that such an application is not maintainable has no force.

Zainal Abedin & another vs Md Abdur Rahim 53 DLR (AD) 69.

Order XXI rule 32(i)-

Detention of judgment-debtor-The Code authorises the Court to pass an order for detention of the judgmentdebtor to civil prison if he wilfully disobeys a decree for injunction. The provision obviously contemplates a valid decree. As the decree for injunction has been found to be illegal and the same has been set aside as being made in a suit barred by a statute the impugned order directing detention of the defendant in civil prison is not sustainable in law.

Mohammad Mofizuddin vs Mohammad Feroj Alam 44 DLR 36.

Order XXI rule 32(1)(2)A-

An enquiry on the truth or otherwise of the allegation of wilful disobedience or violation of injunction by the judgment-debtor is, essential before taking any punitive action against the delinquent.

Jiban Bima Corporation, vs Md Mohibul Majid and another 52 DLR 186.

Order XXI rule 32(5)-

There is no bar in law to execute the decree passed in a suit for specific performance of contract to put the decree holder in possession of the land or property decreed by the trial Court.

Kafiluddin vs Sukkur Ali Mia 50 DLR 208.

Order XXI rule 34—

Mandatory provisions of Order XXI, rule 34-When a draft document is placed before the Court it is a mandatory requirement of law that the court shall thereupon cause the draft document to be served on the judgment-debtor together with a notice requiring his objections, if any, to be made within a stated time. The judgment-debtor will have to state his objections, if any, within the stated time and the Court shall make such an order approving or altering the draft as it thinks fit. Thereafter the decree-holder shall deliver to the Court a copy of the draft with such alteration, if any, as they may have been directed upon proper stamp paper, if required. And the Judge shall then execute the document so delivered. This is, in short, the mandatory provision of Order XXI, rule 34 of the Code of Civil Procedure.

Effect of failure to give notice to the judgment-debtors and not causing service of draft to the judgment-debtors-Procedure illegal and unwarranted and the judgment-debtors were not in a position to say what objections they had to the draft.

Majeda Begum vs Khoda Box Mollah 41 DLR 392.

Order XXI rule 35-

Execution of decree in a case where legality of executing the interest of one of the decree-holders open to question Assuming that decree-holder Abdul Aziz was an Indian national and his interest in the decretal properties became vested property and as such the decree to the extent of his share cannot be executed, there is no reason why the decree to the extent of the shares of other decree holders cannot be executed. Orders of the Courts below are set aside and the case is sent back on remand to the executing court for fresh decision.

Tanjina Khatoon vs Nabaruddin 42 DLR 458.

Order XXI rule 35-

On close scrutiny of sub-rule (1) of Order XXI rule 35 of the Code, it appears to me that when a decree is passed for possession of any immovable property, the executing Court is duty bound to deliver possession to the decree-holder.

Mirza Abdul Bari Beg and others vs Zahidannessa and others 54 DLR 344.

Order XXI rules 35, 36, 97-100 and Section 151—

Decree for ejectment-Third party's locus standi-No inquiry into the title or possession of a third party is contemplated at his instance under rules 35, 36, 95 or 96 of Or. XXI when decreeholder or auction-purchaser applies for possession. When the decree-holder is met with obstruction in obtaining possession an option open to him is to apply under rule 97. An enquiry at the instance of a third party in possession is contemplated only under Order XXI r. 100 after he was dispossessed and not before. There being a remedy open to the third party by way of a separate suit, there was no room for exercise of the inherent power for adjudication of his claim of title or possession over the disputed property.

Haroon vs Sufia Khatun 44 DLR 63.

Order XXI rules 52 and 56-

Bangladesh Bank vs Mrs Rana Awan and others 46 DLR 678.

Order XXI rule 54-

In a pre-emption case when the case holding does not appear to be a mortgaged property or charged for mortgage sale, such holding even if sold in execution of any money decree, any alienation by the judgment debtor does not come within the purview of the doctrine of tis pendens in absence of the proof of service of notice under Order XXI, rule 54 of the Code upon the alienor or the alienee as the case may be.

Badiul Alam being dead his heir Fazlul Karim vs Md Nurul Islam 55 DLR 517.

Order XXI rule 58-

The Banking Companies Ordinance, 1962 made special provisions for banking companies when they are in liquidation and empowered the High Court Division exclusive jurisdiction to decide any claim by or against a banking company. Though this Ordinance is in addition and not in derogation of the Companies Act. or any other law for the time being in force, section 60 of the Banking Companies Ordinance by its non obstante clause made provision to prevail over the Companies Act, Civil Procedure Code or any other law for the time being in force.

Bazlul Ghani vs Pioneer Bank Ltd Comilla 42 DLR 480.

Order XXI rules 58, 59, 60 and 61-

The executing court under such circumstances has to follow the provisions of these rules and upon investigation either to disallow the claim of the garnishee (the appellant) or to order otherwise as deemed proper. The executing Court in these circumstances has to follow the provisions of Rules 58, 59, 60 and 61 of Order XXI CPC, make investigation of the claim referred to, or any objection made to the attachment of the money in question, ask the parties to adduce evidence and upon such investigation either disallow the claim of the garnishee that the money in question was, at the time it was attached, not in its possession on account of or in trust for the judgment-debtor (14)--It was the duty of the executing Court to ask this decree-holder to establish his claim by adducing evidence that the Bangladesh Shipping Corporation was holding the money on account of or in trust of the judgment-debtor Messrs Saturn Commercial Enterprise, Singapore and also to ask the garnishee to prove his claim.

It was thus the duty of the Executing Court in this case to ask the decree-holder to establish by adducing evidence that the Bangladesh Shipping Corporation was holding the money on account of Commercial Enterprise, Singapore and also to ask the garnishee to substantiate its objection.

Thus the court is of the view that the matter would be re-heard by the executing court where the contesting parties would establish their respective claims.

Accordingly, we are of the view that the executing Court should re-hear the application made by the appellant Bangladesh Shipping Corporation on 22-5-1986 giving opportunity to the decree-holder to controvert the assertion made by the appellant Bangladesh Shipping Corporation and also to give the decree-holder as well as the alleged garnishee Bangladesh Shipping Corporation an opportunity to establish their claim.

Bangladesh Shipping Corporation vs R Ahmed 40 DLR 36.

Order XXI rules 58-61-

Where a third party has claimed property under attachment in execution of a decree and filed an application under the aforesaid provision of law, then it is the duty of the court to investigate the claim and the executing Court should not reject the application without assigning any reason.

Foyez Ahmed and others vs Uttara Bank and others 55 DLR 635.

Order XXI rules 58-61-

The scope of enquiry under Order XXI rule 58 of the Code is very limited, which is confined to the question of possession. But such possession must be independent of the judgment debtor and not through the judgment debtor within the meaning of rule 61.

Yunus Mia (Md) and others vs Bangladesh Krishi Bank and ors 54 DLR 123.

Order XXI rules 60 and 61-

An order releasing a property from attachment as also an order disallowing a claim to attached property are now appealable after the amendment of 1983.

Bangladesh Shipping Corporation vs Rafique Ahmed 40 DLR 36.

Order XXI rules 61-

The claim that was disallowed under Order XXl, rule 61 is now not only appealable as stated above but also revisable under section 115(1) CPC.

Bangladesh Shipping Corporation vs Rafique Ahmed 40 DLR 36.

Order XXI rule 64 and Section 60-

Convenience andlor inconvenience of the judgment-debtor does not deserve any consideration in the attachment of his property to satisfy the decree.

Asmatunnessa Khatun vs Bangladesh 56 DLR 612.

Order XXI rule 66-

The proclamation contains neither full particulars of the nature of property nor the probable market price of the property. In the absence of such particulars, no valid order for proclamation for sale could be made.

Shankar Lal Das vs Janata Bank and others 54 DLR 371.

Order XXI rules 68 and 90-

Setting aside auction sale-the High Court Division upheld the sale only on the ground that the son of defendant No. 1 being heir of the judgment-debtor contested the suit and, as such, it must be presumed the son had knowledge of the execution case when he himself was a party in the execution proceeding. High Court Division failed to consider that the decree was put into execution for realisation of decretal costs and the main question was whether the auction sale was legally held and to these material questions no judicial mind was applied. Consequently the judgment is liable to be set aside.

Narayan Chandra Sil vs Manhar Mondal and others 43 DLR (AD) 152.

Order XXI rules 82-88—

It appears from a reading of sub-rule 3 of rule 83 that in case of execution of a decree for enforcement of a mortgage there is no scope for private sale, it must be sold by public auction.

Khorshed Alam (Md) vs Subordinate Judge & Artha Rin Adalat and others 54 DLR 239.

Order XXI rule 90-

Alleged trend in the publication and conduct of sale. The appellant could not prove by legal evidence that he could not file the application within time because of fraud or that his applications were within time from the date of his knowledge of such fraud. There was no error in rejecting the applications summarily.

Ahmed Meah vs Ejahar Meah 40 DLR (AD) 276.

Order XXI rule 90-

Auction sale having taken place and the sale having been confirmed the issuance of sale certificate in favour of the auction-purchaser cannot be withheld by parties not connected with the mortgage suit or the mortgage execution case.

ADC (Rev) and Assistant Custodian vs Tohidul Hossain Chy and others 51 DLR (AD) 117.

Order XXI rule 90-

Under section 5(4) of the Ain, Artha Rin Adalat is a Civil Court having all the powers and jurisdiction under the Civil Procedure Code subject to the provision of the Ain.

Antibiotic Stores and others vs Subordinate Judge and Artha Rin Adalat 55 DLR (AD) 13.

Order XXI rule 100-

A 3rd party may come into the picture in the execution case under provisions of Order XXI, rule l 00 when he is dispossessed from the decretal land. In a case like the present, inherent power under section 151 CPC not available. Remedy of a party like X when the holding is not the decretal land lies in a separate suit.

Saleh Ahmed vs Md Zakaria 37 DLR296.

Order XXI rule 100-

If the Court finds that the third party-opposite party is a transferee from the judgment debtor, he is not entitled to maintain application under rule 100 and his remedies are by way of suit under rule 103 to establish his right.

Sultan Mia (Md) vs Hazi Md Yusuf 53 DLR 555.

Order XXI rules 100 & 101-

The proceedings under the rules are no doubt summary in nature and the wrong done to a party by the executing Court at the instance of the decree holder without any fault of such party must be remedied by the executing Court.

Delwar Hossain Khan vs Alhaj Rustum Ali & others 54 DLR 328.

Order XXI rules 101 & 103-

The Court's direction restoring bonafide claimant to possession cannot be held back on the ground of institution of a suit claiming present possession of the property.

Abdul Kaiyum (Md) vs Krishnadhan Banik and others 49 DLR (AD) 140.

Order XXII rule 1-

If the heirs of a deceased for any reason cannot be substituted within time, the court may then allow the heirs to be added as parties.

Ujjol Hossain vs Firoja Khatun 41 DLR 481.

Order XXII rule 2-

There is no limitation for substitution of the heirs of deceased parties in a revisional application-In a suit for partition, the right to sue survives till final decree is made and heirs of deceased defendants or plaintiffs should be brought on record else complications shall follow.

Hossain (Md) and others vs Dildar Begum and others 55 DLR (AD) 60.

Order XXII rule 3-

Plaintiff dies-Suit thereupon dismissed for default-Substitution prayer by the legal representatives and the fact of plaintiff's death being brought to the notice of the court, the court cannot fix a date for hearing there being none to be heard so far as the plaintiff is concerned and court should allow the legal representatives of the dead plaintiff to apply to bring themselves on record in place of the dead plaintiff within 90 days' time as provided in Article 176 of the Limitation Act, Munsifs order dismissing the suit when it was called for hearing after the death of the plaintiff totally misconceived; he ought to have set aside the dismissal acting under section 151 CPC.

Kamal Anwar vs Kabir Khan 37 DLR 193.

Order XXII rule 3-

The learned Munsif should have accepted the application of the petitioners as basically an application under Order XXI, rule 3 CPC. He ought to have set aside his earlier order and should have restored the suit and after substituting the petitioners as plaintiffs should have proceeded with the trial therefor.

Kamal Anwar vs Kabir Khan 37 DLR 193.

Order XXII rule 3-

Substitution of the representatives of the deceased respondent when they are already on record in another capacity - No abatement.

People's Republic of Bangladesh, vs Abul Kaiser Chowdhury 37 DLR (AD) 85.

Order XXII rule 3-

A revision does not abate but at the same time when the sole petitioner in a revision dies and no step is taken for substitution of the heirs of the petitioner the revision cannot run.

Israil (Md) Hossain vs Shah Iqbal Agsan and others 48 DLR 173.

Order XXII rule 3-

The civil revision case having been disposed of two years back there remains nothing for recording an order of abatement in the case which was disposed of on merit by the High Court Division.

Monir Ahmed Fakir and others vs Abdul Jalil Munshi and others 50 DLR (AD) 198.

Order XXII rule 3-

Provision of section 152 is like the provision of section 151 CPC. It is a legislative recognition of the court's inherent power to correct its own fault.

Siddiqur Rahman (Md) and others vs Profulla Bala Devi & others 50 DLR (AD) 213.

Order XXII rule 3-

It is only when the interest of the plaintiffs is indivisible that a suit abates as a whole not being sustainable with respect to the rest of the plaintiffs.

Abdul Kader Mondal and others vs Shamsur Rahman Chowdhury 51 DLR (AD) 253.

Order XXII rules 3, 4, 11 and 12-

Abatement of appeal-whether appeal arising from an order in an execution proceeding abates with the death of a party to the appeal-There will be abatement of an appeal arising from a suit under the provisions of rules 3 & 4 of the Order. Since rule 11 does not refer to execution case or decree holder or judgment debtor rules 3 & 4 of the Order will not apply to an appeal from an order in execution proceeding and there will be no abatement of the appeal from an order in an execution case. An appeal from an order in an execution case is nothing but the continuation of the execution case and since rules 3 & 4 of the Order do not apply to execution case as provided under rule 12 of the Order such appeal cannot abate on the failure of the appellant to bring on record the heirs of the deceased respondent within the time prescribed by law. Procedural law cannot be interpreted to frustrate the fruits of the decree or order from being enjoyed by the successful party.

Tripura Modern Bank Ltd vs Sunil Kumar 43 DLR 460.

Order XXII rule 3(1)-

Proceeding as to tenancy-Substitution-Appellants have kept alive the issue of heritability of monthly tenancy in this appeal and while disposing of the appeal the Court will take note of its latest decision on the subject in 44 DLR (AD) 1 that a monthly tenancy is heritable. The view of the High Court Division that the appellants cannot claim substitution on the basis of the case reported in 32 DLR (AD) 171 is therefore no longer sustainable.

Sharifa Khatun vs Md Yusuf 44 DLR (AD) 285.

Order XXII rule 3(2)-

There is no merit in the contention that the case under Order IX rule 13 of the Code abates for non-substitution of the heirs of the deceased plaintiff.

Sharif Ullah Patwary and others vs Jharna Dhara Chowdhury and another 47 DLR 307.

Order XXII rule 4(3)-

The real test for determination as to whether an effective decree can be passed against a living person. In the frame of the present suit the question is whether the suit abates in its totality or not will depend upon nature of relief claimed in the suit.

Shafiul Alam Nizamee vs Karima Begum Hamidun Nessa 40DLR 422.

Order XXII rule 4(4)-

If a party to the suit dies, then either an application for substituting his heirs or an application seeking exemption in accordance with Order XXII, rule 4(4) of Civil Procedure Code has to be filed within 90 days. A plaintiff cannot get the exemption automatically without filing an application or a Court cannot exercise the power of exemption after the suit has abated. This is also the view of the Calcutta High Court in AIR 1957 (Cal) 12.

Hamidul Huq Chowdhury vs Amina Khatoon 47 DLR 446.

Order XXII rule 4(4)-

Under the law the heirs of a non contesting defendant need not be substituted.

Jalaluddin (Md) and others vs Laily Begum and others 48 DLR (AD) 163.

Order XXII rule 4(4)-

Since opposite parties were non-contesting and did not file any written objection till the date of final hearing, no substitution of their heirs is necessary as procedural law the Code of Civil Procedure will apply.

Jalal Uddin Ahmed (Md) and ors vs Delwar Hossain and ors 51 DLR 552.

Order XXII rule 9-

Moqbul Ahmed & others vs Shocb Chowdhury & others 44 DLR 156.

Order XXII rule 9-

A legal representative of a deceased party in a suit if brought on record by substitution in any ancillary or related proceeding arising out of the suit, the substitution of the party will hold good for the suit as well and no fresh application to bring the legal representative of the deceased party on the record of the suit would be necessary.

Akhtar Banu vs Habibunessa and others 48 DLR (AD) 164.

Order XXII rule 9-

Non-substitution of some of the heirs whose names could not be gathered in spite of due diligence or an heir not born at the time of substitution cannot make the decree ultimately passed in the suit illegal or void.

Harunur Rashid vs Zakiatunnessa Begum and others 47 DLR 580.

Order XXII rule 9-

The High Court Division erred in proceeding on the basis that on account of non-substitution of only one plaintiff the suit as a whole had abated and the revision had become infructuous. The suit being one for declaration of title the revision is required to be disposed of on merit by the High Court Division.

Nuruzzaman (Md) vs Moazzem Hossain and others 53 DLR (AD) 56.

Order XXII rule 9-

After recording and drawing up a preliminary decree in a suit for partition, there will be no abatement on the death ofa defendant and the legal heirs of the deceaseddefendant can be brought on record at any time for effecting proper allotment of shares.

Arabinda Das vs Sura Bala Das and others 53 DLR 97.

Order XXII rule 9(2)-

Prayer for setting aside an abatement order-Unless there is gross negligence, etc the expression "sufficient cause" may be liberally construed-If this abatement is not set aside the applicant is deprived of proving his claim-Court's power in dealing with such an application is discretionary, and Court when exercising it may afford to be liberal.

Azimunnessa vs Rup Gaji 39 DLR 6.

Order XXII rules 9(2)(3)-

Effect of abatement can be overcome only by fulfilling the provisions of Order XXII, rule 9(2) and (3) of the Code of Civil Procedure.

Bhupati Biswas vs Niranjan Biswas 40 DLR 517.

Order XXII rule 9(2)(3)-

Unless there is gross negligence and laches on the part of the applicant, the Court should liberally consider the prayer for setting aside abatement as an abatement deprives the applicant the opportunity of proving his claims.

Shakainath Mohanta vs Md Tatikuddin Mondal and others 52 DLR 541.

Order XXII rule 10—

A writ application has to abate as against the dead person. The question of substitution of the person dead at the time of institution of the writ application does not at all arise.

Bangladesh vs Sub-Judge 45 DLR 419.

Order XXII rule 10—

Assignment of interest-when the decree was not finally drawn up there could not be any lawful objection in filing an application under Order XXII r. 10 of the Code. The Court failed to consider this material aspect that in the suit preliminary decree was drawn and the suit was not completely disposed of and before that stage application for assignment of shares was filed. The High Court Division misdirected itself in holding that the application was one under Order XXI rule 16 by which the question to be decided is whether the applicant is the person entitled to execute the decree but that stage did not reach till then.

Manik Chand Bibi alias Rezian Nahar and another vs Abdul Mutakabbir Chowdhury 44 DLR (AD) 251.

Order XXII rule 10—

The court has ample power to treat an application filed under Order I rule 10 CPC as an application under Order XXII rule 10 CPC. Mentioning of a wrong provision of law is no ground for rejection of the application if the substance of the application discloses ingredients of passing appropriate order..

Abu Taher Bhuiyan vs Lal Mohan Mondal and others 54 DLR 604.

Code of Civil Procedure, 1908 (Order XXIII-XXXV)

Order XXIII rule 1-

Prayer for withdrawing a suit-As the plaint does not disclose any formal defect, the provision for withdrawal of the suit is not at all attracted. Besides, there had earlier been an order of remand and opportunity to produce all the papers.

Khabiruddin vs Bangladesh 43 DLR (AD) 201.

Order XXIII rule l Order XLI rule 23-

The appellate Court cannot direct the trial Court on remand to consider the application for withdrawal of the suitafter the suit had already been decreed bytl'le trial Court. In allowing the application the trial Court must come to a finding that the suit suffers from formal defect.

Pradip Kumar Malakar vs Birendra Chandra Malakar 45 DLR 422.

Order XXIII rules 1 & 2-

The plaintiff is at liberty to withdraw his suit at any stage without any permission from the Court and he needs permission for withdrawal only when he wants to sue afresh on the same cause of action.

Shyamal Chandra Roy vs Probhat Chandra Roy 51 DLR 504.

Order XXIII(1)(2)-

There is no legal bar in granting an application for withdrawal of a suit with liberty to file a suit afresh on the self-same matter even at the revisional stage provided the other requirements of the. law are complied with.

Mustafa Kabir Uddin Ahmed vs Badrun Nessa Chowdhury 54 DLR 416.

Order XXIII rules 1 & 2(a)(b)-

The court may allow withdrawal of suit if it is satisfied that the suit must fail by reason of some formal defects or there are sufficient other grounds.

Sk Abul Kashem vs Abdus Samad Biswas 51 DLR 70.

Order XXIII rule 1(1)-

The withdrawal of suit by necessary implications blots out the effect of the judgments and decrees prior to withdrawal. If the application for withdrawal is allowed and at the same time the decrees passed by the courts below be retained it would create a situation contradictory in terms. An order of setting aside of judgments and decrees in the suit withdrawn should naturally follow.

Abdur Rahman and others vs Kheru Malitha and others 50 DLR (AD) 71.

Order XXIII rule 1(2)-

Where the trial Court dismissed the suit. not only on formal defects but also for want of merit in the plaintiff's case, permission to withdraw the suit with liberty to sue afresh on the same subject matter is not contemplated in law.

Habibur Rahman Paikar (Md) vs Gour Gopal Datta and others 51 DLR 54.

Order XXIII rule 1(2)-

Petition under Orders XXIII, rule 1(2) for withdrawal of suitCourt to decide whether there is any formal defect or sufficient ground-If there is none, duty of the court is to reject the application-But if it allows withdrawal, leave to bring a fresh suit cannot be refused.

There is no dispute whatsoever and the legal position is very much clear that without any formal defect or sufficient ground the prayer for withdrawal with permission to sue afresh cannot be allowed. It is now well settled as held in 5 DLR 89 that the first thing that the Court has to decide is whether there is any formal defect or sufficient ground for which the withdrawal should be allowed. If however there is no such defect or ground the clear duty of the Court is to reject the application. But if it allows withdrawal it cannot refuse leave to bring a fresh suit, for the obvious reason that the sole purpose for which the withdrawal is sought is to institute a suit afresh.

The application for permission to withdraw from the suit and to file a fresh suit on the same cause of action is to be regarded as one indivisible whole, and it is not open to the permission to bring a fresh suit.

Shahabuddin Ahmed vs Upazila Election Officer 41 DLR 168.

Order XXIll rule 1(2)-

Withdrawal of the suit with liberty to sue afresh-Plea of formal defects in the schedule to the plaint-Defects can be amended by filing a petition for amendment of the plaint-Discretion vested in the court under Order XXIII, rule 1(2) CPC has been properly exercised-No illegality committed in rejecting revisional application summarily.

Md Badruddin Moral vs Santosh Kumar Sen 41 DLR (AD) 156.

Order XXIII rule 1(2)-

The application for withdrawal of the suit ·having not stated specifically the legal, formal or other defects which cannot be cured even by amendment of the plaint and the assertions made therein being vague and in lump the order for withdrawal with liberty to sue afresh is set aside.

Abdur Rahman vs Abdul Mabin 46 DLR 246.

Order XXIII rule 1 (1)(2)(3)(4)-

Whether the right of withdrawal of a plaintiff from the suit is dependent on the consent of the other plaintiffs.

Kumud Behari Majumdar vs Nirmal Krishna Majumdar 40 DLR 415.

Order XXIII rule 1(3)-

Dismissal of a suit for non-prosecution does not amount to withdrawal of the suit and the plaintiff is not precluded to file a fresh suit on a new cause of action.

Amir Hossain Khairati vs Abdul Aziz Bepari and others 47 DLR (AD) 106.

Order XXIII rule 1(4)-

Controlling power of sub-rule ( 4) of rule l of Order XXIII. Is sub-rule (1) of rule 1 independent of other sub-rules? Apart from the controlling power under sub-rule (4) whether the court has any power to impose restriction upon the right of one or more of the several plaintiffs to withdraw from the suit without the consent of others or in spite of such restriction as imposed under sub-rule (4) of rule 1 of Order XXIII, the court can exercise the inherent power to make appropriate order in the interest of justice. Is sub-rule 1 of rule 1 independent?

Kumud Behari Majumdar vs Nirmal Krishna Majumdar 40 DLR 415.

Order XXIII rule 1(4)-

In spite of controlling powers as reserved in sub-rule (4), the Court has inherent right to exercise powers in passing appropriate orders in all cases if the interests of justice so demand.

Kumud Behari Majumdar vs Nirmal Krishna Majumdar 40 DLR 415.

Order XXIII rule 1(4)-

Whether withdrawal of the plaintiff from the suit on behalf of himself and all others by virtue of a Power of Attorney is permissible under law-Whether the order passed allowing the suit to be dismissed for ·non-prosecution on the basis of solenama on the application of one proforma defendantlplaintiff would be hit by provisions of Order XXIII, rule 1, sub-rule (4).

Tamijul Haque vs Yunus Ali (Md) 42 DLR234.

Order XXIII rule 1(4)-

Withdrawal of coplaintiff from the suit-The Court can exercise the inherent power to make appropriate order in the interest of justice.

A co-plaintiff, if he has a separate cause of action, can always be allowed to withdraw without affecting the rights of other coplaintiffs-withdrawing plaintiff needs be transposed as proforma defendant in order to avoid the suit being dismissed for defect of parties.

Suresh Majumder vs Govt of Bangladesh 42 DLR JO.

Order XXIII rule 3-

Solenama remaining in possession of the defendant for about 4 years with no explanation why it was not filed in court, nor was any prayer ever made during this time for recording the solenama. This shows solenama was not acted upon.

The normal course in respect of a compromise is that whenever any compromise is made between the parties during the pendency of a suit, then the plaintiff or any other party does not proceed with the suit but that they file a compromse-petition with a joint-prayer through their lawyers for recording the solenama and then the proceeding of the suit shall stop there. But in this case, it appears that not only the plaintiff proceeded with the suit but also the defendant No. 2 (appellant) contested the suit all through till the date of final hearing on 31.1.90. Thiruvengada Mudaliar vs Thaugavelu Mudaliar and others AIR 1928 (Mad) 594 & AIR 1934 Pat 582 held not applicable.

AFM Safiyyullah vs AKM Bashirullah 46 DLR 146.

Order XXIII rule 3-

When parties to a suit compromise their dispute in consideration of something not covered by the subject matter of the suit such consideration forming a stipulation in the petition of compromise cannot be effective part of the compromise decree but such stipulation being part of a valid contract can be enforced by a separate suit, though not by putting the decree into execution.

Fazlu Molla vs Shamsul Hoque Molla 45 DLR 299.

Order XXIII rule 3 and Order XLIII rule 1(m)-

In a case where decree has been passed in pursuance of an order recording compromise, there can be an appeal against the order itself and the decree drawn in pursuance to the said order will not be a bar to the right of appeal given under Order XLIII, rule 1(m) of the CPC.

Abdul Khaleque vs Siddiqur Rahman 42 DLR 29.

Order XXIII rule 3 and Order XLIII rule 1(m)-

Where compromise not denied and nothing to show the same was unlawful-Court has no option but to pass a decree on compromise.

Abdul Khaleque vs Siddiqur Rahman 42 DLR 29.

Order XXV rule 1-

The object of Order XXV, rule 1 CPC is to protect the defendant in cases where in the event of success he may face difficulty in realising the cost of suit-The Court can, either on an application by the defendant or of its own motion on a finding that the plaintiff or plaintiffs have no immovable property in Bangladesh other than the property in the suit, pass an order directing the plaintiff or plaintiffs to furnish security or costs.

Ratan Krishna Ghose vs Rafique Miah 40 DLR 303.

Order XXV rule I, Order XXXVIII rule 5 & Order XLI rule 5-

For mere non including of the properties in the security, the same cannot be brushed aside or rejected.

Mr Sikder vs. Bangladesh Water Development Board 49 DLR 113.

Order XXVI rule 9-

A court can order local investigation for the purpose of elucidating any matter in dispute, if it deems such investigation necessary.

A reference to Order XXVI, rule 9 shows that local investigation can be ordered for the purpose of elucidating any matter in dispute in which the court deems that the local investigation is necessary. According to the plaintiff, he has title in the suit land and he has been illegally dispossessed by the defendant. The defendants also assert that the plaintiffs land is 200 yards away from the land of the defendant. This is really a matter of evidence and the trial Court will decide that in pursuance of the evidence both oral and documentary that will come up at the stage of trial.

Maulana Abdul Matin vs Shah Alam Bhuiyan 41 DLR 243.

Order XXVI rule 9-

A matter which can be decided by evidence cannot be subject-matter of local investigation.

Maulana Abdul Matin vs Shah Alam Bhuiyan 41 DLR 243.

Order XXVI rule 9-

Plaintiff described his land by giving boundary-Defendants in WS asserted that lands claimed by the plaintiff are not the same land as claimed by the defendant-Local investigation not necessary. Maulana Abdul Matin vs Shah Alam Bhuiyan 41DLR243.

Order XXVI rule 9-

Local investigation

Further commission-Since the court will be in a position to determine the disputed point on the basis of the investigation done at the instance of the plaintiffs and other materials on record, further commission is redundant.

Md Emdaduddin Sheikh vs Atiqur Rahman 42 DLR 416.

Order XXVI rule 9-

Local investigation

Discretion-It is not to be fanciful-The Court has discretion in passing order allowing or not allowing a Pleader Commissioner but the discretion is to be judicious and not fanciful. The refusal of local investigation was perhaps for avoiding delay in disposal of the proceeding but it has actually been lingered because of the impugned order which could, be avoided by allowing the prayer for local investigation as warranted by the facts.

Kazi Abdul Awai Zewar Rashid vs DMC 45 DLR 509.

Order XXVI rule 9-

In the absence of any pleading, evidence or application it is not the businesses of the Court to appoint an Advocate Commissioner for holding local investigation.

Abdul Kader Mondal and others vs Akbor Mondal and others 47 DLR 237.

Order XXVI rule 9-

The trial Court is not correct in rejecting the report of the Advocate Commissioner simply saying that some irrelevant things have been stated in the report-irrelevant things if any, could be deleted and at the time of trial objection could be raised against the report.

Jahanara Begum and others vs Azizul Islam (Kanchon) and others 47 DLR 587.

Order XXVI rule 9-

If identity of the suit property is not challenged by the other side, the question of holding local investigation relaying the property does not arise.

Lakshmi Bazar Shahi Masjid Committee and another vs St Francis Xavier's Girls High School 51 DLR 557.

Order XXVI rule 9-

The report of the Advocate Commissioner is neither substantive nor conclusive evidence. The Court will consider the report in the light of other evidence that may be given by the contesting parties.

Khondker Abdul Majed vs Tarapada Dey 51 DLR 336.

Order XXVI rule 9-

The Court was required to dispose of the Local Investigation matter whether he would reject the same or accept before posting the suit for peremptory hearing.

Ismail (Md) vs Motasim Ali Chowdhury 53 DLR 190.

Order XXVI rule 9-

When the trial Court does not find local investigation necessary for deciding a suit and rejects the prayer for local investigation on assigning reasons a superior Court cannot impose it on the trial Court.

Nadera Banu vs Protiva Rani Sen Gupta and others 55 DLR 149.

Order XXVI rules 9 & 10-

The trial Court may expunge the relevant portion of the report about possession and may direct the Advocate Commissioner to resubmit his report according to law deleting the comment about possession of the parties which will be determined by the court after recording evidence.

Sufia Islam Shila and another vs Shakhawat Hossain 54 DLR 178.

Order XXVI rule 9 & Order XXXIX rule 7-

In the suit for permanent injunction the opposite parties having pleaded to have their structures on the suit land, local inspection at their instance was rightly allowed.

Abdur Rouf Chowdhury (Md) vs Abdul Hashem (Hashu) and another 53 DLR 458.

Order XXVI rule 9 & Order XXXIX rule 7-

Whether or not the defendants violated the injunction order is the pertinent issue to be determined by the Court itself in the proceeding against violation case the Court cannot delegate its power to any person. In the proceeding pending against violation of an order of injunction the plaintiff would have ample opportunity to prove his case by evidence. The Joint District Judge acted illegally in ordering inspection in the case by impugned order.

Arif Iftekhar Ali and others vs Sekandar Ali Hawlader 56 DLR 82.

Order XXVI rule 10-

Commissioner's report is to be evaluated in the facts of the case on the evidence adduced and the Court has wide discretion in such matter. Mere acceptance of the report should not give rise to any apprehension in the mind of the litigant.

Abul Quasem vs Md Lutfur Rahman 43 DLR (AD) 17.

Order XXVI rule 12-

The report itself of the Advocate Commissioner is not evidence but if the Commissioner deposes on oath before the court then the same is evidence.

Abdus Sattar (Md) and others vs Lalon Mazar Sharif and Seba Sadan Committee and others 56 DLR (AD) 180.

Order XXVI rule 14-

The purpose of section 4 is to see that a transferee outsider does not force his way into a dwelling house in which other members of the transferor's family have right to live. Once the partition decree is made in preliminary form, the rest is for the Commissioner. But the Court at that stage is not concerned as to what direction should be given to the Commissioner for completing the partition.

The Court can only give a limited direction after perusing the Commissioner's report as to which plot is to be partitioned.

Sree Jugal Kishori Sarker vs Azizur Rahman 40 DLR (AD) I 50.

Order XXVI rule 17-

Amendment basically relating to quantum of damages will not change the nature and character of the suit and therefore it could be allowed.

Dula Meah Cotton Spinning Mills Ltd, and another vs MV Mehedinta and others 47 DLR 551.

Order XXVII rules 1 and 2-

The Government by a Notification dated 14th December 1955 authorised the Military Estate Officer as specified in the Schedule of the said Notification, to sign and verify the plaint or written statement in a suit by or against the Government. Deputy Commissioner not authorised to sign the plaint or written statement and when he does it, the Court must ignore it and proceed as if no plaint or WS has been filed.

Maqsood Alam vs People's Republic of Bangladesh 38 DLR (AD) 290.

Order XXVII rules 1 and 2-

Specific provisions having been made in rule I Order XXVII CPC as to the person who is authorised to sign a plaint or written statement on behalf of the Government, provisions in rule 2 of Order 27, have no application in such matters. Provisions of rule 2 are applicable to circumstances not covered by specific provisions made in rule 1 of Order XXVII.

Maqsood Alam vs The People's Republic of Bangladesh 38 DLR (AD) 290.

Order XXXII rule 3-

The order of remand made by the Subordinate Judge in the circumstances of the case should not have been sustained by the High Court Division.

Sukumar Sen vs Gouranga Bejoy Dey 42 DLR (AD) 18.

Order XXXII rule 3-

The duty of the guardian ad /item continues throughout the execution proceeding. By the grossly negligent act of the guardian the minors had suffered substantial injury. Their appeal is therefore allowed and the suit decreed.

Rekha Datta vs Chittagong Urban Co-operative Bank 46 DLR (AD) 133.

Order XXIX rule 1-

The Managing Director of the plaintiff-company has the legal authority to sign the plaint and the verification to the plaint, whether or not the Managing Director has been so authorised by the Articles of Association of the Company.

Doon Valley Rice Limted vs MV Yue Yang and others 48 DLR 531.

Order XXIX rules 1 and 2-

Claim of legal obligation in support of injunction-The legal right as claimed by the plaintiff under the cover of registration of their trade union is similarly being enjoyed by the defendants under cover of valid registration of their trade union. It cannot therefore be said either trade union is under any obligation to be restrained by any order of injunction.

Badsha Miah vs Tofael Ahmed Chowdhury 42 DLR 504.

Order XXXII rule 3-

Appointment of guardian by court for minor defendants is mandatory, but its non-compliance in a case where minor has not been prejudiced does not render the whole proceeding of the suit including the passing of the decree against others a nullity. The minor defendants were proforma ones against whom no decree was sought.

Sukumar Sen vs Gouranga Bejoy Dey 42 DLR (AD) 18.

Order XXXII rule 3-

In this case a Court guardian was appointed at the appellate stage, and he after corresponding with natural guardian of the said minors and perusal of the record submitted a report in court that the minors had no subsisting interest-That being the position there could be no necessity for sending the case back to the trial Court for the purpose of appointing a guardian for the minors in the suit and to try the suit again-The minor defendants filed a sworn petition in the High Court Division stating that they had no interest in the original suit.

Sukumar Sen vs Gouranga Bejoy Dey 42 DLR (AD) 18.

Order XXXII rules 6 & 7-

A suit in which a plaintiff is minor cannot be compromised without leave of the Court.

Kalitara Biswas vs Mrinal Kanti Biswas 39 DLR (AD) 216.

Order XXXII rule 15-

The court has to make inquiry and satisfy itself as to whether the person Azizur Rahman is of unsound mind and to settle the issue has to take assistance of a doctor.

Azizur Rahman vs Mariamunnessa and others 54 DLR 108.

Order XXXIII rule 1(2)(3)-

Withdrawal of suit and question of preclusion from instituting a fresh suit-A plaintiff must be seen in the position of filing a second suit after actual withdrawal of first suit without obtaining permission to sue afresh. If he is not caught in this position then the bar of this provision is not attracted.

Gouri Rani Dutta vs Taib Ali 43 DLR 13.

Order XXXIV rules 2, 7 and 11-

Suit for recovery of money by sale of mortgaged goodsDecree without interest whether needs interference-The Commercial Court rightly took the view that the defendant company was unable to pay any interest. The awarding of interest on the decretal amount is purely a matter of discretion of the Court. The Commercial Court exercised its discretion in refusing interest on the valid ground that the company failed to run their business.

Sonali Bank vs Messrs Begg and Beg Jute Incorporated 43 DLR 27.

Code of Civil Procedure, 1908 (Order XXVII-XL)

Order XXXVII rules 2 and 3-Summary suit-Leave from Court to defend- The scheme of Or. XXXVII is summary one and a departure from the procedure provided for ordinary suit. In the instant case there being no application filed within time mentioned in the summons, the question of granting leave does not arise. On the failure of the defendant to obtain the Court's leave to defend, the plaintiff is entitled to a decree. Javed Traders vs Premier Soap Factory Ltd 44 DLR 490.

Order XXXVII rule 2-In view of our decision that a fixed deposit is not a promissory note and not a negotiable instrument, Order XXXVII of the CPC is plainly not applicable to the instant three suits filed on three fixed deposits. Ansarul Huque vs Agrani Bank 48 DLR 479.

Order XXXVII rule 3-District Court Judge can only grant a defendant leave to appear and defend the suit ifthe defendant raises a triable issue. Khan and Company Ltd vs Presiding Judge of the District Court and others 54 DLR 121.

Order XXXVII rules 3 and 2-Summary suit-Leave from Court to defend-the scheme of Order XXXVII is summary one and a departure from the procedure provided for ordinary suit. In the instant case there being no application filed within time mentioned in the summons, the question of granting leave does not arise. On the failure of the defendant to obtain the Court's leave to defend, the plaintiff is entitled to a decree. Javed Traders vs Premier Soap Factory Ltd 44 DLR 490.

Order XXXVII rule 4 - An order setting aside an ex parte decree must be speaking order satisfying the special circumstances envisaged in the Rule. Duree Shahwar Begum vs Ali Ahmed Patwari 48 DLR 222.

Order XXXVIII rule 1-Warrant to arrest the defendant-As the suit is for determination of right to immovable property, the Subordinate Judge had no jurisdiction to pass the order of arrest of the defendant nor such an order could be passed in exercise of the Court's inherent jurisdiction. Mosharraf Hossain Mia vs Mosammat Hasina Begum 43 DLR 254.

Order XXXVIII rule 5-Attachment (of the defendant's property) before judgment-The Court is to direct the defendant either to furnish security or to show cause why he should not furnish security. An order of attachment of the defendant's property before asking him to show cause against attachment not legal and cannot be upheld. Lokman Hossain vs ATM Sadek Hossain 37 DLR 220.

Order XXXVIII rule 5-In regard to Admiralty Court, provisions of Orders XXXVIII, rule 5 for attachment before judgment is not applicable. Kings Shipping Trading Co vs Messrs LS-Line & others 38 DLR 30.

Order XXXVIII rule 5-0rder for attachment of defendant's property on an application that discloses no particulars of property suffers from error of law. lsrail Hossain vs Himalaya Ice & Cold Storage Ltd 46 DLR 44.

Order XXXVIII rule 5-Where an order of attachment is liable to be set aside, the bank guarantee furnished pursuant to such order is also liable to be returned for cancellation. Eurco Explorer Co Ltd and others vs Grain Bank Ltd 45 DLR 591.

Order XXXVIll rule 5-In the aforesaid premises, the proceeds of the letter of credit do not squarely come within the provision of Order XXXVIII rule 5 for attachment before judgment for which the Court could interfere asking for furnishing security or by attachment before judgment in order to satisfy any possible decree that may be passed in the suit. Gooryonly (BD) Textile Ltd vs Chartkar Information Holding Ltd and ors 54 DLR (AD) 70.

Order XXXVIII rules 5 and 8- Attachment of a chartered ship before judgmentWhether a ship under voyage charter is liable to attachment for the dues of the charterer under a voyage-charter-Even if the contention of the petitioner is accepted and it is found that the ship in question reached territorial waters of Bangladesh under a time charter the ownership and also the possession of the ship remained with the original owner through the master and the crew who continued to be his servants. The opposite party being a voyage charterer as found by the Court below and he not being the owner of the ship in any manner the ship in question was not liable to be attached before judgment at the instance of the petitioner. Bangla Jalpari Lines (Pvt.) Ltd vs Continental Grain Company (Canada) Ltd & others 43 DLR 617.

Order XXXVIII rules 5 & 6-The object of the provision is not to pass an order which has the effect of stoppage of the business activity by attachment of bills receivable. Nirman International Ltd vs Islam Steel Mills Ltd and others 50 DLR 125.

Order XXXVIII rules 5-10-The power of attachment before judgment being a power interfering with a party's right to enjoy its own property, the court should be circumspect in allowing the prayer for such attachment. Islam Steel Mills Ltd vs Nirman International Ltd and others 50 DLR (AD) 21.

Order XXXVIII rules 5(I) & 5(3), 6(1)-The order of attachment on the face of it is illegal and liable to be set aside the court could have taken into consideration the question of security as the first alternative in accordance with the provision of this Order. Habibur Rahman Khan vs Nurul Islam Khan 50 DLR 82.

Order XXXIX rule 1 - Injunction in a partition suit restraining defendant from making any construction on the joint property.

The plaintiff instituted the suit for partition the defendants being the co-sharers with the plaintiff in respect of the land, the subject-matter of partition. The plaintiff also filed an application under Orders XXXIX, rule I CPC for injunction restraining the defendant from making any construction in the suit property till the disposal of the suit. Defence was the defendant was in · possession of specific portion of the land in suit and as such no injunction order restraining the defendant should be made.

Held: Since this is a suit for partition, for ends of justice and equity it is most convenient, practicable and reasonable that both the parties should maintain status quo till disposal of the suit. Mst Estema Khatun vs Azizul Haque 37 DLR 302.

Order XXXIX rule 1- The petitioner was not expected to know when the boycott of the Munsifs Court was ended and as such the petitioner had sufficient cause for not filing his petition within the prescribed time limit. Shaikh A Kader vs Kalu Sk 37 DLR 304.

Order XXXIX rule 1-Grant of relief by way. of temporary injunction-Under Order XXXIX, rule I, CPC the Court need not enter into the merit of the case as is necessary for passing a decree after hearing the evidence of the parties. Md Nurul Huq vs Bangladesh Bank 39 DLR 310.

Order XXXIX rule 1-Definition as given in section 2(13) oflndustrial Relations Ordinance includes all disputes as contemplated in IROLabour Court constituted under the Ordinance shall be deemed as a Civil Court for the purpose of adjudication of all industrial disputes including granting of injunction, etc. Pubali Bank vs Chairman 39 DLR 128.

Order XXXIX rule 1 - Whether a co-sharer in specific and separate share of the ejmali property is entitled to retain his possession till legal partition by injunction against another cosharer threatening dispossession.

This appeal has been brought by special leave to consider a question of considerable public importance. It is whether a co-sharer in ejmali property, when he has been in exclusive possession of a specific and separate share thereof, well demarcated by boundaries, is entitled to retain his possession till legal partition, by an order of injunction against another co-sharer who threatens him with dispossession.

High Court Division, on an erroneous view of law, reversed the decision of the trial Court and the lower appellate Court rightly answered the question that injunction can be granted against a co-sharer who threatens another co-sharer with dispossession. The only question of law agitated in the suit all through was whether an injunction could issue at the instance of a co-sharer in exclusive possession of a separate and well-defined share against another co-sharer who threatens the former with dispossession. This question was rightly answered by the trial Court and the appellate Court but the learned Single Judge on an erroneous view of law reversed their decision. Moharram Ali vs Mahammad Madhu Mia 41 DLR (AD) 92.

Order XXXIX rule 1 - A relief of temporary injunction cannot be granted for the mere asking of it.

A relief of temporary injunction cannot-be granted just for the' mere asking of it after filing of a suit as has practically been done in his case. The principles governing the exercise of discretion in such matter are well known and have also been indicated above as are relevant for the present purpose. In view of the foregoing discussion we must hold that the exercise of discretion in the instant case has not been made upon correct judicial principles. Bangladesh Sericulture Board vs Md Fazlur Rahman Akunjee 41 DLR (AD) 25.

Order XXXIX rule 1-For claiming a relief of temporary injunction the plaintiff must satisfy as to a prima facie nature of his case.

The Court can consider a prayer for temporary injunction when the impugned order is on the face of it without jurisdiction or in violation of any law or rule.

In a case where the order impugned appears to be without jurisdiction on the face of it or in violation of any law or rule governing the employment in service a court can legitimately consider a prayer for temporary injunction pending disposal of the action. In matters of service a court has also to keep in view the difficulties and problems that are likely to be created in the matter of administration in that particular office or organisation before allowing a prayer for temporary injunction. This is an aspect of the principle of balance of convenience and inconvenience of the parties before the court. Bangladesh Sericulture Board vs Md Fazlur Rahman Akunjee 41 DLR (AD) 25.

Order XXXIX rule 1-High Court Division, having set aside the injunction order omitting from consideration the material points i.e. payment of money and possession of land by the appellant, did not properly exercise its discretion in interfering with order of injunction. Momin Miah vs Moinuddin 42 DLR (AD) 175.

Order XXXIX rule 1-lmpugned order does not show that there is a prima facie case in favour of the plaintiffs-No application of mind by the Assistant Judge while passing the impugned order of ad-interim injunction. Wahid Sadeque vs Mozibar Rahman Chowdhury 42 DLR 220.

Order XXXIX rule 1-Plaintiffs tenure to establish prima facie case for temporary injunction-Non-consideration of two other points has not caused any failure of justice.

But when plaintiff-petitioners have failed to establish any prima facie case for temporary injunction, then even non-consideration of the other two points or absence of any specific findings thereon cannot cause any failure of justice or vitiate the impugned order. So, this contention of the learned Advocate for the petitioners also fails. Md Osman Goni vs Begum Tafatun Nahar 41 DLR 151.

Order XXXIX rule 1-Appointment of a receiver when "just and convenient"-Court explains as to what is conveyed by the expression "just and convenient". Afruz Mia vs Siraj Mia 39 DLR 360.

Order XXXIX rule 1-A bonafide possession of the property in dispute should not be disturbed by appointment of a receiver unless a property case is clearly made out. Md Afruz Mia vs Siraj Mia 39 DLR 360.

Order XXXIX rule 1-The discretionary relief of temporary injunction having been granted by the courts below the High Court Division was not correct in disturbing the same without taking into consideration the finding of fact on consideration of which the injunction was granted. Rupban Bibi vs Aynal Kha and others 44 DLR (AD) 144.

Order XXXIX rule 1-Injunction in ejmali property-If temporary injunction results in giving possession of a part of an ejmali property held by member of the same family to a stranger then it should not be granted without first specifying the land. Alauddin vs Yusuf 45 DLR 328.

Order XXXIX rule 1 - The plaintiffs admittedly could not participate in the bid as they were allegedly obstructed by armed miscreants. As such they have no prima facie right to collect tolls from the suit hat for 1398 BS. If they sustain loss due to alleged illegality in holding the auction, they may realise compensation. Aslam Hossain Chaklader vs Ali Nur 45 DLR 366.

Order XXXIX rule 1 - The plaintiff prima facie being owner and earlier user of the trade mark is entitled to restrain the defendant by an order of temporary injunction. Nasir Miah, Malik Nasir Soap Factory vs Md Anwar Hossain, Executive Officer, Commander Soap Factory Ltd 48 DLR 28.

Order XXXIX rule 1-When the High Court Division is in seisin of the matter relating to disputed roads on the question of exercise of right of easement, the defendant cannot obtain any order of status quo in respect of the self-same road by filing a separate suit. Anwarul Hakim and others vs Ramij Ali and others 47 DLR 531.

Order XXXIX rule 1-In view of the earlier decision in writ petition that the plaintiff had no title, his claim for temporary injunction in respect of the suit land is not maintainable. Chairman, Rajdhani Unnayan Kartipakhya and others vs Abul Hossain & others 50 DLR 249.

Order XXXIX rule 1-When the documents submitted by the petitioner discloses a prima facie case, an order of temporary injunction, instead of order of status quo, be passed to avoid complication in view of present social condition of litigant public to use force to come into possession. Kalur Hat KC Bilateral School vs Sabbir Hossain Chowdhury & others 52 DLR 102.

Order XXXIX rule 1-When permanent injunction cannot be granted in the facts and circumstances of the case the plaintiff is not entitled to any order of temporary injunction. Mojibul Haque (Md) vs Ataur Rahman and others 53 DLR 229.

Order XXXIX rule 1-Scarcity of land and pressure for accommodation for residential or commercial purposes in urban areas are growing while the time for resolution of a dispute is so uncertain that nobody can say when it will finally come to an end. In such situation, right of a cosharer to develop the land in his specific possession cannot be denied by an interlocutory order of injunction till partition, which would be inequitable. Abul Kalam Engineer and another vs M Nasiruddin Howlader and others 54 DLR 515.

Order XXXIX rule 1-A person to a litigation cannot do any act to bring about. a change in the state of things existing at the date of the suit in order to forestall a possible order of the Court. Upazila Education Officer & another vs Tara Miah Akhand and others 56 DLR (AD) 203.

Order XXXIX rule 1 and section 151 -Whether the High Court Division can interfere with the discretionary power of the Election Tribunal exercisable under Order XXXIX, rule 1 and section 151 of the Code of Civil Procedure.

Can the Election Tribunal constituted under Ordinance 51 of 193 3 issue an order of injunction either under Order XXXIX, rule 1 or section 151 of the Civil Procedure Code? This is the main question before this court in this Rule. Other questions that incidentally arise are whether this court can interfere with the order of Election Tribunal in exercise of its revisional jurisdiction and whether it is proper for this court to interfere with the discretionary order of the Election Tribunal. An Election Tribunal constituted under the provisions of the Local Government Ordinance, 1976 being not a civil court cannot grant temporary injunction under Order XXXIX, rule I CPC. The Election Tribunal not being a civil Court had no power to grant temporary injunction under Order XXXIX, rule 1 for similar reasons as given under the decision case of Shamsul Hoque Sikdar. Subsequently in the case of Abdul Gafur vs Election Tribunal and Munsif Second Court, Feni a Division Bench of this Court constituted of Ruhul Islam CJ (as he then was) and MH Rahman J, decided that an Election Tribunal acting as such was not competent to issue temporary injunction under Order XXXIX, rule l, CPC as the Election Tribunal was not a civil Court. This decision was in respect of a dispute within the Ordinance of 1976. Mahmud Hussain vs Sayb Ali 41 DLR 44.

Order XXXIX rule 1, section 115(1) and Order XLIII rule 1(r)-On an application for temporary injunction in a suit for declaration of title, the learned Assistant Judge, Dhaka passed an ad-interim order of injunction restraining the defendant Nos.1-13 from acting as the officebearers of Bangladesh Chalachitra Paribeshak Samity- The defendant as petitioner, preferred the instant Civil Revision under section 115 CPC against the said order of injunction as the forum of appeal remained closed because of the vacation of the Civil Court from the 1st December to 31st December, 1989. During the said vacation there was no forum of appeal for the petitioners to file an appeal before the learned Division Judge against the said order of injunction passed by the learned Assistant Judge.

The plaintiff opposite party challenged the propriety of the issuance of the Rule under section 115(1) CPC on the ground that the impugned order was appealable under Order XLIII, rule l(r) CPC and as such revision does not lie.

Held: On consideration of the facts and circumstances of the case and the decisions cited from the Bar, the High Court Division is of the opinion that revision is not barred merely because the impugned order is appealable to the Court of District Judge. Wahid Sadeque vs Mozibar Rahman Chowdhury 42 DLR 220.

Order XXXIX rule 1, Section 151-Though the appeal of the writ-petitioner was dismissed but the ad-interim order of injunction passed during the pendency of the appeal was a valid order required to be complied with-Writrespondent not having complied with the same, the writ-petitioner was entitled to restoration as ordered. Government of the People's Republic of Bangladesh and another vs Md Shamsul Haque and anr 56 DLR (AD) 101.

Order XXXIX rule 1 read with section 151-The outcome of the suit will depend on its merit on evidence but an order in the nature of mandatory injunction will be issued to remedy an immediate wrong. Mobasher Hossain (Md) and others vs Saidur Rahman (Pvt) Ltd and others 55 DLR 51.

Order XXXIX rule 1(3)-Proceeding under this provision of law is quasi-judicial in nature---for punishment under this provision the petitioner is to prove strictly his case of disobedience of an order of injunctions; the opposite party is under no obligation to prove his innocence. Rafiqul Hossain@ Ranaesh vs Lal Mohan Saha & others 45 DLR 718.

Order XXXIX rules 1 and 2-There is no specific area or demarcation of the land allegedly encroached by the defendants opposite parties; in such a case no order of temporary injunction can be granted. Fahim Al Haque vs Mohammad Abdul Aziz 43 DLR 226.

Order XXXIX rules 1 and 2 - In a partition suit concerning land in the urban area a co-sharer should not be granted injunction if the proposed construction by other co-sharers does not diminish the value of the suit land. Fahim Al Haque vs Mohammad Abdul Aziz 43 DLR 226.

Order XXXIX rules 1 and 2-Ad-interim Injunction, propriety of-As the plaintiff did not get any injunction from either of the courts below and the application for revision was moved after more than 3 months of the refusal of injunction by the court of appeal below, the granting of adinterim injunction ex parte at the time of issuing the Rule could not be said to be a proper exercise of discretion. Rather, it should be considered an unusual order in the facts of the case. Quazi Nowab Faruque vs Abdul Latif Bhuiyan 43 DLR (AD) 101.

Order XXXIX rules 1 & 2-A person who is aware of an order of the Court is bound to obey the same even though he was not a party to that when it affects the result of the earlier order. Bangladesh Bank and others vs Zafar Ahmed Chowdhury and another 53 DLR (AD) 70.

Order XXXIX rules 1 and 2-Injunction against Government-under Martial Law Order 40/82 imposing a bar on court's jurisdiction to issue temporary or ad-interim injunction when it will interfere with development plan or harmful to public interest. Md Ismail Hossain Pashary vs Most. Fatema Bewa 38 DLR 221.

Order XXXIX rules 1 and 2-Apart from ad-interim injunction order which may be refused if conditions for granting temporary injunction are fulfilled, it should be granted. Md Ismail Hossain Pashary vs Most. Fatema Bewa 38 DLR 221.

Order XXXIX rules 1 and 2-lnjunction prayer for stay of execution of a decreeConsideration which should weigh with court in a matter like this-Presumption as to regularity of judicial acts-A decree-holder should not be deprived of the fruits of the decree. Md Abbas Ali vs SM Monsur Ali 38 DLR 227.

Order XXXIX rules l and 2-Decree passed assailed as obtained by a fraud unless materials indicative of such fraud produced, while asking for temporary injunction, court would be averse to grant the prayer. Md Abbas Ali vs SM Monsur Ali 38 DLR 227.

Order XXXIX rules 1 and 2-Temporary injunction can be given in a suit for simple declaration without consequential relief. Bangladesh Supreme Court Bar Association vs MH Khandkar, Senior Advocate 38 DLR 253.

Order XXXIX rules 1 and 2-Election Tribunal is not a court. Election Tribunal, though happens to be a judicial officer and appointed by the Government, does not become a Civil Court within the meaning of Civil Procedure Code and cannot as such grant temporary injunction in an election case. Abdul Mazid Howladur vs Al-haj Majbul Hoque Talukder 38 DLR 262.

Order XXXIX rules 1 and 2-An Election Tribunal is a creature of statute for some special purpose and not a civil Court subordinate to the High Court Division. Bangladesh Supreme Court Bar Association vs MH Khandkar, Senior Advocate 38 DLR 253.

Order XXXIX rules 1 and 2-Election Tribunal though he may himself be a Munsifis not a Court and as such not competent to grant temporary injunction. Abdul Majid Howlader vs Alhaj Mozibul Haque Talukder 38 DLR 262.

Order XXXIX rules 1 and 2-Failure of successive District Judges-in-charge to pass any order upon hearing an application for injunction is deprecated and an ad interim injunction is granted restraining the defendants from using the disputed trade marks or any other trade mark resembling that of the plaintiff with the direction to hear the application for injunction. Social Marketing Company vs Universal Pharmaceuticals Ltd and another 50 DLR 587.

Order XXXIX rules 1 and 2-ln all companies either private or public for holding a board meeting a written notice shall be given to every director and civil Court may not interfere when there is a valid meeting. When there is prima facie and invalid resolution the civil Court can interfere. The respondents are restrained by an order of temporary injunction from acting on the alleged resolution of the Board of Directors. Ittefaq Group of Publications Limited & others vs Arab Bangladesh Bank Limited & others 50 DLR 597.

Order XXXIX rules 1 and 2-Respondents deserve to be heard in order to see the rightness of the petitioner's case based on requirement of non-arbitrariness in a State action, and not on any legal right, before any order of injunction is passed. Mohsin Mia vs Bangladesh represented by the Secretary Ministry of Forest and Environment & others 49 DLR (AD) 66.

Order XXXIX rules 1 and 2-Interlocutory order by the High Court Division when passed upon hearing both the sides and in exercise of is discretion, unless the discretion has been exercised fancifully merits no consideration for interference. Abul Ahsan, former President of the Chamber of Commerce and Industry, Pabna vs Administrator of Pabna Chamber of Commerce and Industry and another 49 DLR (AD) 46.

Order XXXIX rules 1 and 2-Since the membership of the petitioner is there no more, he cannot be allowed to enter the club premises and take part in its activities which may disturb harmony among club members. Monwar Ali vs Dhaka Club Ltd & others 48 DLR 492.

Order XXXIX rules 1 and 2-Mandatory injunction on an interlocutory application may be granted to restore status quo. The Court has inherent jurisdiction to pass an order of mandatory injunction in a proper case. Amirul Huq Shameem and others vs AKM Shamsuddin and others 49 DLR 77.

Order XXXIX rules 1 and 2-Mere presence of a prima facie case or arguability thereof will not by itself be a ground for issuing temporary injunction. The applicant must show further that irreparable injury will occur to him if the injunction is not granted. Sarhind Garments Ltd vs Glory Truth Industries Ltd and another 49 DLR 260.

Order XXXIX rules 1 and 2-The balance of convenience rule has no place where the applicant's right is doubtful, or where he can be compensated by damages in money, or where the wrong might have been redressed if the applicant was sufficiently vigilant. Sarhind Garments Ltd vs Glory Truth Industries Ltd and another 49 DLR 260.

Order XXXIX rules 1 and 2-No prohibitive order can be passed by a Court to interfere with the normal banking transaction and also the contractual obligation of the Bank when the only dispute is as to the performance of contract and when dispute can be resolved by bringing an appropriate action for damages. Sarhind Garments Ltd vs Glory Truth Industires Ltd and another 49 DLR 260.

Order XXXIX rules 1 and 2-Unauthorised possession cannot be protected by an order of injunction which is an equitable relief. Ramjan alias Mintu Miah vs Emtashem Hussan alias Babu Meah and others 47 DLR 359.

Order XXXIX rules 1 and 2-Temporary mandatory injunction-It is an error of law to grant such an order of injunction directing to reconnect the gas line when disconnection of the line was done in exercise of performing legal duties. Chairman, Bangladesh Oil, Gas and Mineral Corporation and others vs Md Abul Kashem 47 DLR 413.

Order XXXIX rules 1 and 2-In deciding the matter of temporary injunction maintainability of the suit should not be gone into and decided, particularly when there will be necessity of evidence at the trial of the suit for correctly deciding such issue. Jamalpur Fishermen's Cooperative Society Ltd vs Deputy, Commissioner, Kishoreganj and others 47 DLR 573.

Order XXXIX rules 1 & 2-Granting or refusing injunction is an equitable relief. It should be used in aid of equity and fair justice. It is well settled that one who comes for equitable relief must come with clean hands. Here the plaintiffs came with unclean and dirty hands and, as such, they are not entitled to any equitable relief. Khaleda Rahman & another vs Integrated Services Limited and ors 53 DLR 161.

Order XXXIX rules 1 & 2-If the offending Trade Mark of the defendants infringes the Trade Mark rights of the plaintiff then no amount of monetary consideration can come in the way to restrain the defendants from using a Trade Mark even nearly resembling that of the plaintiff. Hamza Rubber Industries vs Galam Dastagir Gazi 53 DLR 430.

Order XXXIX rules 1 & 2-The right to get supply of the gas created by the contract is subject to the obligation to pay the bills of the gas consumed. In case of default, the right to supply of gas stands forfeited. Titas Gas vs Immense Washing Plant and others 53 DLR 471.

Order XXXIX rules 1 & 2- The Court of appeal below granted mandatory injunction for restoration of connection without any security against huge arrears, and without any terms whatsoever. Such order has rendered the terms of the contract practically suspended. Titas Gas vs Immense Washing Plant and others 53 DLR 471.

Order XXXIX rule 1 & 2-In matters of interlocutory injunction, the Court normally should not enter into the merit of the suit and decide whether a suit is maintainable or not. Molla Mahjenul Islam vs State and ors 53 DLR 552.

Order XXXIX rules 1 & 2-Where the final relief cannot be granted in the terms sought for because the statute bars granting such a relief, ipso facto the temporary relief of the same nature cannot be granted. Molla Mahjenul Islam vs State and ors 53 DLR 552.

Order XXXIX rules 1 & 2-The pendency of an application for registration before the Registrar of Trade Marks or even the granting of a provisional certificate of registration of the mark does not debar a civil Court in a suit for infringement of a trade mark from passing an order of temporary injunction against the use of the mark where there is the likelihood that the mark would deceive or cause confusion in the minds of unwary purchas. Abdul Mannan Miah vs Md Salaiman Miah 54 DLR 394.

Order XXXIX rules 1 and 2-Since rent receipts are evidence of possession and collateral evidence of title and in a suit for permanent injunction where the plaintiff did not mention the boundary of the specific plot and there is no specific demarcation, granting injunction in favour of the plaintiff cannot be sustained. Kala Chand alias Chand Mia & others vs Karim Khan and others 55 DLR 564.

Order XXXIX rules 1 & 2-The contention of the Counsel for the petitioners that Courts are always slow in granting injunction in an arbitration matter is not absolute one since in an appropriate case the Court is very much competent to make an order of injunction in the background of the facts of a particular case. Unicoi Bangladesh Blocks Thirteen and Fourteen (formerly named Occidental of Bangladesh) and another vs Maxwell Engineering Works Ltd and another 56 DLR (ADJ 166.

Order XXXIX rules 1 and 2-There is no law empowering a court to grant mandatory injunction for payment of any portion of the amount claimed in a suit for a money decree for work done. MR Trading Co vs Superintendent Engineer and others 56 DLR 470.

Order XXXIX rules 1 and 2-An order of mandatory injunction or mandatory ad interim injunction is an extremely harsh and highly discretionary order passed at the discretion of the Court to restore a situation existing on the date of filing of the suit or occurred after filing of the suit and in breach of any order of the Court. Such order cannot be passed to restore or bring back a situation which was not in existence on the date of filing of the suit. Nurul Islam and ors vs Khatibuddin Ahmed and ors 56 DLR 545.

Order XXXIX rules 1, 2 and 3 -- Show cause notice about injunction - Whether appeal lies against the relevant order - The Order cannot be termed an order of refusal of the plaintiff's prayer for temporary ad interim injunction. An order must be a formal expression of the decision of the court but in the impugned order there is no such formal expression. It is an order simpliciter for notice upon the opposite party to show cause why injunction should not be issued and as such it is no order under rules 1 & 2 but an order under rule 3 and it does not fall within the category of an appealable order. Bengal Waterways Ltd vs Inland Water Transport Authority & others 46 DLR 179.

Order XXXIX rules 1, 2 and 4-An order of interim injunction is to be passed keeping in view the principles that the Court will not normally interfere with the internal management of a Company and with the decision of a domestic tribunal. Shafiuddin Sarwar vs Dhaka Club Limited 45 DLR 753.

Order XXXIX rules l, 2 and Section 151- Mandatory injunction would be available if dispossession had taken place during the pendency of the suit or during an order of ad interim injunction. Ministry of Communication, Railway Division, People's Republic of Bangladesh vs Md Ferozur Rahman 45 DLR 762

Order XXXIX rules 1, 2 and Section 151- A licence which is by nature revocable cannot be specifically enforced and in a case relating to a contract which cannot be specifically enforced no injunction could be allowed. Ministry of Communication, Railway Division, People's Republic of Bangladesh vs Md Ferozur Rahman 45 DLR 762.

Order XXXIX rules 1 & 2 & Section 151- No injunction can be granted against operation of bank account and withdrawal of the money in deposit as per terms of contract. The account being opened with a specific condition setting the act of operation of payment, the Bank is bound to comply with the condition on which it has accepted the deposit. Ziauddin Ahmed and others vs Arab Bangladesh Bank 53 DLR (AD) 107.

Order XXXIX rules 1, 3 & Order XLI rule 5--At the time of admission of appeal Appellate Court has got the jurisdiction to pass an order staying operation of ad interim injunction passed by the trial Court. Abdul Latif vs Shere Bangla Balika Mahavidalay 46 DLR 336.

Order XXXIX rule 2-lnjunction when granted-The right to obtain an injunction is ancillary to a right to file a suit and the only requirement is whether the plaintiff has an arguable prima facie case and whether he will suffer irreparable loss if the injunction is not granted. Deputy Secretary Ministry of Commerce vs Nizamuddin Haider 37 DLR 102.

Order XXXIX rule 2-Temporary injunction-Question of issuing such injunction in a suit for declaration simpliciter. If the suit is otherwise maintainable and it is found that the defendant without being in possession, wants to disturb the plaintiffs possession, the court cannot be powerless to grant temporary injunction in an appropriate case. An order granting injunction must be a speaking order. Ramani Marak vs Jamini Marak 46 DLR (AD) 51.

Order XXXIX rule 2(3)-Allegation for violation of an injunction order passed by Civil Court under Order XXXIX, rule 2(3) partakes of a quasi-criminal nature-the Court in such a proceeding should frame issue disclosing material particulars constituting the offence so that the person at fault may be put on his guard as to his defence. Sultan Ahmed Howladar vs Habibur Rahman Munshi 39 DLR 260.

Order XXXIX rule 2(3)-Adequate remedy having been provided against disobedience of an injunction order issued under Order XXXIX of the Code, as provided in Order XXXIX rule 2, a contempt petition is not maintainable on this score. Momena Begum vs Dhaka City Corporation and others 55 DLR 43.

Order XXXIX rule 4-Injunction-Facts of each case to be considered while granting or refusing it-Injunction being a form of equitable relief should be issued in aid of equity and justice-OP No.1 did not approach the Court with clean hands. KPM Sramik Karmachari Union vs Registrar, Trade Union 41 DLR 262.

Order XXXIX rule 4-Temporary injunction cannot be granted as it would lead to interference with and ultimately frustrate the order of the Court which was passed in the suit under section 9 of the Specific Relief Act. Monowara Begum vs Syed Ashrafuddin 40 DLR (AD) 251.

Order XXXIX rule 4-Injunction against execution proceeding, when proper-Bank's suit for recovery of money from its debtor ended in a compromise decree permitting the debtor to sell the mortgaged property at Tk 7 lakh to clear bankdebt and the debtor was to make up shortfall. The debtor made an agreement with appellant for sale of the property for Taka 6 lakh. When the Bank started Execution Case for sale of the mortgaged property, the appellant filed a suit for specific performance of his contract against the debtor and the Bank, on the basis of the agreement, with a prayer for injunction, which was allowed. On appeal, the High Court Division set aside the injunction order omitting from consideration the material points i.e. payment of money and possession of the land by the appellant-High Court Division did not properly exercise its discretion in interfering with the trial Court's order of injunction. Momin Miah vs Moinuddin Hossain 42 DLR (AD) 175.

Order XXXIX rule 4-Transfer of shares in a company in violation of some of its Articles of Association being a laches on the part of the Company and its directors; injunction granted to restrain such transfer cannot be sustained. Bangladesh Electrical Industries Limited & another vs Sena Kalyan Sangstha 45 DLR 749.

Order XXXIX rule 4- The inherent power of the Subordinate Judge cannot extend to interference with the order of temporary injunction passed by the Appellate Court. The Subordinate Judge has no jurisdiction to change or sit on the order passed by the District Judge in exercise of the inherent power under section 151 of the Code. Repco Laboratories Ltd vs Nuruddin Ahmed 43 DLR 123.

Order XXXIX rules 6-10-Life-span of an interlocutory order passed in a suit is restricted to a period from its date to the date when the suit is finally disposed of. It is an aid to keep the parties in even position pending adjudication of their claims and disputes in the suit. Government of Bangladesh represented by the Secretary Ministry of Industries and another vs Shafi A Chowdhury and another 47 DLR 567.

Order XXXIX rule 7- The plaintiffs got a temporary injunction restraining defendant No.1 from disturbing their possession in their specific areas. The order of injunction was violated by defendant No. 1 who was held guilty, convicted and sentenced to civil imprisonment. The conviction was upheld by the District Judge but set aside by the learned Single Judge, who took an erroneous view of law. Moharram Ali vs Mohammad Madhu Mia 41 DLR (AD) 92.

Order XXXIX rule 7- Rule 7 of Order XXXIX was not attracted to the seizure of accounts books. The case of Padam Sen and another vs State of UP AIR J96J(SC) 218 arose out ofa suit for realisation of money on the basis of a promissory note alleged to have been executed by the defendants in favour of the plaintiff. The defendants apprehended that the plaintiff would fabricate his books of accounts with respect to payments made by them and applied for the seizure of the account books. The Indian Supreme Court held that accounts books were not the subject matter of the suit, and rule 7 of Order XXXIX of the Code was not attracted. Md Mobarak Hossain vs Md Mustafa Hossain 40 DLR (AD) 20.

Order XXXIX rule 7 - Having regard to the urgency of the situation and the necessity for passing the interim order to protect the rights or to secure the interest of justice, any order passed by the Court without giving notice to the opposite party is not illegal. Mohammad Mobarak Hossain vs Mohammad Mustafa Hossain 40 DLR (AD) 20.

Order XXXIX rule 7 - Local inspectionIn view of the averments made by the contending parties it appears that in order to ascertain whether the deed of gift was acted upon, that is, whether possession of the land in question was delivered to the donee is a material question and as such local inspection as petitioned for by the plaintiff to ascertain whether there is any house on the suit land is neither irrelevant nor unnecessary. The trial Court is accordingly, directed to allow the prayer for local inspection. Mahmud Ibne Abbas vs Begum Momtaz Hossain 45 DLR 421.

Order XXXIX rule 7 - Detention or preservation or inspection for the purpose of detention or preservation of the subject matter of the suit or as to which any question may arise in the suit can only be ordered under rule 7, if it is in possession, custody or power of the other party. Ministry of Industries and another vs Shafi A Chowdhury and another 47 DLR 567.

Order XXXIX rule 7-It will not be fit and proper to allow an inspection when the plaintiffs admittedly obtained possession of the unit in 1984 and when, after having unilaterally enjoyed possession thereof for five years, applied for inspection in 1989. Shafi A Chowdhury & anr vs Government of Bangladesh, represented by the Secretary, Ministry of Industries 51 DLR (AD) 21.

Order XL rule 1-Service of notice, if such service is necessary in the matter of apointment of a receiver. Order XL, rule 1 of the Civil Procedure Code does not contemplate the service of notice of the application for appointment of receiver to a party. A Mannan vs Govertment of Bangladesh 39 DLR 19.

Order XL rule 1-Before passing an order appointing a receiver in exercise of its discretionary power the court has to state the circumstances under which the appointment of receiver was considered necessary. A Mannan vs Government of Bangladesh 39 DLR 19.

Order XL rule 1-Apointment of a receiver in a partition suit between members of a joint family not favoured. Md Musa vs Tazul Islam 38 DLR 134.

Order XL rule 1 - Before passing an order appointing a receiver, Court must state the circumstances under which such appointment was found proper and right. A Mannan vs Govt. of Bangladesh 38 DLR 420.

Order XL rule 1-Uniform Customs and Practice for Documentary Credits published by the International Chamber of Commerce making the said custom and practice as a part of the irrevocable letter of credit-Position of law regarding attachment of the property of the defendant for satisfaction of the decree that may be passed to frustrate any possible attempt to dispose of the property or part thereof or to remove the same out of the jurisdiction of the court stated. Janata Bank vs Messrs Ahmedia Garments 40 DLR 72.

Order XL rule 1-In the instant case it is in the letter of credit that the Bill of Exchange is to be negotiated within 15 days from shipment, the beneficiary of the Bill of Exchange is entitled to be paid by the negotiating Bank on demand. Janata Bank vs Messrs Ahmedia Garments 40 DLR 72.

Order XL rule 1-Principles of international commercial transaction and banking system as spelt out in UC and PDC. A letter of credit has an autonomy of its own and it need be negotiated or paid without any reference to the very contract out of which the credit arose. The LC is independent of any contract of sale or underlying transaction or dispute between the parties. Janata Bank vs Messrs Ahmedia Garments 40 DLR 72.

Order XL rule 1-Fraud vitiates every thing and in most cases it originates when a commercial party contracts with a rogue. Banks cannot be made to act as policemen to "police" upon any kind of fraud in international commercial transaction. No re-imbursement shall be stopped by any court of law when an authorised or negotiating bank makes any payment to a third party on the basis of papers appearing to be correct. Janata Bank vs Messrs Ahmedia Garments 40 DLR 72.

Order XL rule 1-In the instant case there existed a contractual obligation between the Janata Bank, Bangladesh to re-imburse the negotiating Bank, namely, the Bank of Tokyo, for the amount paid upon the irrevocable power of attorney opened by the Janata Bank. Defaulting seller Messrs Yama Moto Co, Japan has no subsisting interest and no attachment. Janata Bank vs Messrs Ahmedia Garments 40 DLR 72.

Order XL rule 1-There is no bar in rule I of Order XL of the Code of Civil Procedure for appointment of a receiver during the pendency of an appeal. Shamsuddin Ahmed & others vs Government of Bangladesh & others 45 DLR 675.

Order XL rule 1-The Appellate Division is loathe to interfere in the matter of appointment of a receiver unless the circumstances are of such an exceptional nature that refusal might entail a risk of clear abuse of process or some gross injustice. Akhteruzzaman vs Ali Amjad Khan and others 50 DLR (AD) 199.

Order XL rule 1-No order for appointment of receiver should be passed to deprive a de facto possessor of the property. Kamiruddin and others vs Md Mokshed Ali Biswas and others 48 DLR (AD) 14.

Order XL rule 1-There is no reason for appointment of a receiver in the instant case, particularly when the court below did not find any mismanagement or damage to the property in question. Halima Akhter Khatun and others vs Md Salauddin Khan and others 56 DLR I 72.

Order XL rule 1-A man in rightful possession of a property should not ordinarily be dislodged from possession by putting the property in the custody of the receiver unless it becomes expedient in the interest of justice. Abdul Mazid Khan and others vs Ali Howlader & ors 56 DLR 587.

Order XL rule 1 (a) -- Where members of a family are in separate possession of the property for a long time, there should be no appointment of a receiver without the consent of the parties. Ali Akbar (Md) and others vs Sakina Begum and others 56 DLR 303.

Order XL rule 3 - In an application for stay of execution it is for the court to decide whether it should pass the stay order on hearing the judgment-debtor or both judgment-debtor and the decree-holder-It cannot be laid down positively that under no circumstances a stay order should be made without hearing the decree-holder. AKM Shahidur Rahman vs Md Mafizullah Master 38 DLR279.

Order XL rule 5 - It is not an inflexible. rule that the appellate Court when moved against an order passed by the trial Court ordering delivery of possession to the decree-holder cannot pass an order staying delivery of possession without hearing the decree holder-the matter being one which rests with the appellate Court having regards to the circumstances of a case.

The Election Tribunal (Munsif of the UpaZila) in the case declared that the election of the Chairman of the Union Parishad to be void and fresh election to be held. AKM Shahidur Rahman vs Md Mafizullah Master 38 DLR 279.

Order XL rule 5-Mere filing of an appeal is not sufficient to warrant stay of execution of a decree. Stay is a matter of discretion of the Court.

In view of the hardship to which the appellant might be put in case the entire decretal amount is to be paid by him at once, half the decretal amount should be paid whereupon the execution proceeding may be stayed. Out of the decretal amount Taka one lac is to be paid within two months and the respondent is to furnish security for refund of the amount. Anwar Hossain Bhuiyan vs Shaikh Moslem Ali 42 DLR (AD) 158.

Order XL rule 5-The opposite party (the returned candidate) moved the Election Appellate Tribunal who stayed the operation of the judgment till disposal of the appeal.

Held: In the present case the Election Appellate Tribunal did not commit any illegality in passing a final order for stay of execution of the judgment and order appealed from without passing through two stages or without hearing the respondent-petitioner. AKM Shahidur Rahman vs Md Mafizullah Master 38 DLR 279.

Code of Civil Procedure, 1908 (Section 1-10)

Section 2-

"District", "District Court" & 'Judge', In section 2 of the Code of Civil Procedure, 'District", "District Court", 'Judge' are defined as follows:

"District" means the limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a "District Court" and includes the local limits of the ordinary original civil jurisdiction of the High Court Division).

"Judge" is defined in the following language:

"Judge" means the presiding officer of a Civil Court"

AKM Ruhul Amin vs District Judge 38 DLR (AD) 172.

Sections 2(A), 3, 15, 24, 38, 39 and 44A(1) –

Under section 18 of the Act the jurisdiction of a District Judge or Subordinate Judge extends (subject to the provision of section 15 of Code) to all original suits cognizable by Civil Courts.

Sonali Bank vs Abidur Rahman 42 DLR 311.

Sections 2(2)-

Decree passed on the basis of adverse possession-Though no issue was framed on the vital question of adverse possession - Decree is illegal.

Niropoma Ritchel vs Mohammad Abdul Jalil Miah 41 DLR 467.

Sections 2(2)-

Decree in a Partition suit - Necessary parties not impleaded - No Court will pass such infructuous decree as it will run into jeopardy being not binding upon them.

C Juri Talukder vs C Magni 40 DLR 532.

Section 2(2)-

Whenever executing court finds any difficulty to understand the decree it can look to the relevant judgment which gave rise to the decree for clarification and appreciating the decree properly.

Abdul Jalil Mollah vs Sree Mati Dasi and others 47 DLR 240.

Section 2(2)-

After passing of the final decree in a partition suit it is effective between the admitted co-sharers and for the purpose of a preemption proceeding where the transfer is made by a co-sharer to a stranger, this question of execution of the final decree between the cosharers is not relevant and necessary.

Shafiuddin Chowdhury (Md) vs Md Abdul Karim and others 52 DLR (AD) 41.

Section 2(2) and 2(9)-

Award given by an Arbitrator shall be deemed to be a decree and the statement of the grounds of such award to be a judgment within the meaning of section 2(2) and section 2(9) of the Code of Civil Procedure respectively. The Arbitrator shall have all the powers of Civil Court under section 36 of the Ordinance No. 2 of 1982.

Begum Lutfunessa vs N Ahmed 40 DLR 232.

Section 2(2) and Order VII, rule 11 and Order XLIII-

The suit having been found maintainable the plaint was not rejected-The impugned order though not appealable, appeal was wrongly filed against the impugned order.

Ayezaddin Sheikh vs Abdul Karim Sheikh 42 DLR 154.

Sections 2(2), 47 and 151-

An order dismissing an application made under section 47 CPC is not appealable and hence an application under section 151 would lie against such order-An order of dismissal for default not a decree.

Sonaban Bibi vs Abu Miah 38 DLR 432.

Sections 2(2), 96 & Order IX rule 13-

Appeal -Effect of its disposal- ‘Appeal’ which has not been defined in the Code, is meant to be an application by an aggrieved party asking an Appellate Court to set aside, modify or revise a decision of a subordinate Court-an 'appeal' even if irregular, incompetent or time-barred is nonetheless an appeal-the order of dismissal of a memorandum of appeal as time-barred comes within the deeming provision of section 2(2) of the Code, because by such an order the rights of parties with regard to matters in dispute are finally determined.

Abdul Mannan vs Jobeda Khatun 44 DLR (AD) 37.

Section 2(4)-

The Court of the District Judge is superior in grade to the Court of the Subordinate Judge-The Court of the Subordinate Judge cannot be the principal Civil Court of original jurisdiction of a District caJled the "District Court".

SonaIi Bank vs Abidur Rahman 42 DLR 311.

Sections 2(4), 24 and 44A(1)-

The word "District Court" as used in section 44( 1) is primarily to be interpreted with reference to the definition of the District Court as given in section 2(4) of the Code-"District Court" referred to in section 44A(l) of the Code means the Court of the District Judge under section 3(1) of the Civil Courts Act and no other Court.

Sonali Bank vs Abidur Rahman 42 DLR 311.

Sections 2(9)-

Order of dismissal of a suit for default cannot be called a judgment or order contemplated by the Code.

Sonali Bank vs Md A/Akram (Badal) and others. 46 DLR 671.

Section 2(11)-

Definition of legal representative shall be given a wide meaning to include the heirs of the decreased tenant who died during the pendency of Execution Case.

Kazal Das Surma vs Pradip Das 40 DLR 541.

Sections 2(11) and 50—

The view expressed in CR No. 756 of 1981 that a fresh suit against the heirs of the deceased tenant for eviction did not receive any consideration of section 2(11) & section 50 of the Code of Civil Procedure & section 2(9) of PRC Ordinance (XX of 1963).

Kazal Das Surma vs Pradip Das 40 DLR 541.

Section 2(12) & Order 20 rule 12-

Order XX rule 12 of Civil Procedure Code is merely an enabling provision permitting the Court in a suit for possession to pass also on the plaintiff's prayer, if he so chooses, a decree for past and future mesne profits and this rule has no manner of application in a suit only for mesne profits.

Hamidul Huq Chowdhury vs Amina Khatoon and others 47 DLR 446.

Section 2(14), Order XXXIX rules 1, 2, 3, and Order XLIII r.1(r)-

Show cause notice about injunction-Whether appeal lies against the relevant order-The order cannot be termed an order of refusal of the plaintiffs prayer for temporary ad-interim injunction. An order must be a formal expression of the decision of the court but in the impugned order there is no such formal expression. It is an order simpliciter for notice upon the opposite party to show cause why injunction should not be issued and, as such, it is no order under rules l & 2 but an order under rule 3 and it does not fall within the category of an appealable order.

Bengal Water Ways Ltd vs IWTA 46 DLR 179.

Section 3-

Execution case-Striking out execution case after repeal of section 47 CPC - An objection by heirs of the deceased judgment debtor cannot be entertained after repeal of section 4 7 CPC-After the repeal of section 4 7 of the Code the limited jurisdiction vested in the executing court to decide the question of execution, discharge and satisfaction of the decree has been taken away to save the decree holder from the misery of facing unlimited number of objections against execution of the decree and thereby delaying the execution of the decree indefinitely. Impugned order is liable to be set aside and execution to be proceeded with in accordance with law.

Tripura Modern Bank Ltd vs Sunil Kumar 43 DLR 460.

Sections 3 and 15-

The acquisition proceedings are a colourable exercise of power as they were started without any agreement with the requiring body under section 15 of the Ordinance and for circumventing a valid decree of the Civil Court.

Sankar Gopal vs Addi Commissioner Dhaka 41DLR326.

Section 4-

The Chittagong Hill Tracts Regulation, which is a special law and since there is specific bar, the procedures in Civil Procedure Code will not be applicable.

Bangladesh Forest Industries Development Corporation and others vs Sheikh Abdul Jabbar 53 DLR 488

Sections 4 and 9-

Facts relating to the claim of Trade Union to enforce its right to contest election for Bargaining Agent having not brought the case within the definition of industrial dispute to confer jurisdiction on Labour Court, Civil Court will have jurisdiction in the matter.

KPM Sramik Union vs Registrar of Trade Union 42 DLR 329.

Sections 4 and 9-

Provision in the special law is not affected by provision in the Code of Civil Procedure. Special Jaw must prevail over other laws.

Under section 9 of the Code, the Civil Court shall have jurisdiction to try all suits of civil nature excepting suits of which the cognisance is either expressly or impliedly barred. Section 4 of the Code provides that in the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special law now in force or special jurisdiction or power conferred, or any special form of procedure prescribed by or under any other law for the time being in force. It appears from section 4 that the provision in the special law is not affected by the provision in the Code and that the provision in the special Jaw must prevail in the absence of any specific provision to the contrary.

Jalaluddin Ahmed vs Matiur Rahman Khan 41 DLR 77.

Sections 4 and 9-

The general remedy of the suit under section 9 of the Code will be impliedly barred where a right is created by a special Jaw and special forum is provided in it.

Sections 4 and 9 of the Code read together, therefore, indicate that where a right is created by a special Jaw and a method of enforcing the right is pointed out by the Jaw creating such right, the general remedy of suit under section 9 of the Code will be impliedly barred and the method provided by the special Jaw must be followed.

Jalaluddin Ahmed vs Matiur Rahman Khan 41 DLR 77.

Sections 4 & 9-

The jurisdiction of the Civil Court is impliedly barred in respect of the trial of election disputes.

In matters governed by the said Ordinance and said Rules the jurisdiction of the Civil Court is impliedly barred. In creating the special forum that is, the Election Tribunal with exclusive jurisdiction to deal with election disputes, the intention of the Legislature seems to have been that defeated candidate who goes to the Election Tribunal impeaching the election would be in a jurisdiction or malafide or not in accordance with law.

Motiul Hoque vs DIT (R4JUK) 43 DLR 407.

Sections 4 & 9-

When administrative authority or statutory tribunal is vested with jurisdiction to decide a matter on consideration of materials placed before it, such authority can either accept the materials or reject the same. The trial Court acted illegally in passing the impugned decree holding that the order of the Collector of Customs was ultra vires and without jurisdiction.

Bangladesh & another vs Banarashi Lal Sharal & ors. 45 DLR 669.

Section 9-

Suits which a Court is barred to try-Under section 9 of the Code of Civil Procedure any Civil Court has jurisdiction, "to try all suits of a civil nature excepting suits of which their cognisance is either expressly or impliedly barred".

Nur Muhammad vs Mainuddin 39 DLR (AD) 1.

Section 9-

Ouster of jurisdiction is not to be readily inferred.

Habibur Rahman vs Election Commission 40 DLR 459.

Section 9-

The suit building was included in the list published in the official Gazette in contravention of section 5(1 )(a)(b) of the Ordinance and as such the Civil Court had jurisdiction to try the suit. The Court clearly fell into error in holding that because of inclusion of the building in the official Gazette the suit was not maintainable.

Md Zaher vs Bangladesh 42 DLR 430.

Section 9-

Ouster of Court's jurisdiction to try a suit-the ouster of Court's jurisdiction is not to be readily inferred. Even when there is an express ouster, the court shall retain its jurisdiction if the order passed is without position to agitate before the Tribunal in a properly framed election petition the pre-election controversies materially affecting the result of the election.

Mostafa Kamal vs BD Habibullah 41 DLR 197.

Section 9-

The suit falling within the exclusive jurisdiction of the Small Cause Courts Judge but erroneously tried by a court other than the sec Judge suffers from no legal infirmity and the trial cannot be vitiated. Section 23 of the Small Cause Courts Act negatives the proposition that section 16 of the Act altogether deprives the civil Court of the jurisdiction conferred by section 9 of the Code in respect of the small causes suit.

Wahida Rashid vs Miran Muhammad Zahidul Hoque 43 DLR 115.

Section 9-

Decree by civil Court- whether Court of Settlement is competent to disturb it-The decree is binding on the Government until it is set aside by a court of competent jurisdiction. A party to the suit cannot say that an agreement, which was the basis of the suit, was forged. The Court of Settlement has no power to set aside a decree of the civil Court but it has the jurisdiction only to decide the matter on the basis of papers produced and so the decree stands against the Government.

Rahela Khatun vs Court of Settlement 45 DLR 5.

Section 9-

Soleman Bibi and ors. vs Administrator, Farajikandi Complex and ors. 45 DLR 727.

Section 9-

Decision of the civil Court with regard to the nature of the property and also the plaintiffs claim thereto is not only binding upon the present petitioner but also upon the Court of Settlement.

Moinuddin (Md) vs The People's Republic of Bangladesh, represented by the Secretary Ministry of Works 48 DLR (AD) 56.

Section 9-

Even if jurisdiction is excluded still then the civil Courts have jurisdiction to examine as to whether the provisions of an Act have been duly complied with or to examine as to whether a statutory tribunal has acted in conformity with the fundamental principles of judicial procedure.

Shahidullah (Md) vs Abdus Sobhan Talukder 49 DLR 248.

Section 9-

The jurisdiction of the Court is conferred by law and it never depends upon the consent of the parties. It is thus evident that the Assistant Judge acted illegally and without jurisdiction in passing the impugned decree.

Rokeya Begum vs Md Abdur Rahman alias Ganda being dead his heirs : 1(a) Md Abdul Barik and others 50 DLR 271.

Section 9-

When alternative remedies are available to a party, it is open to him to prefer any one or more of his choice and he cannot be compelled to have recourse to a particular remedy.

Narayanganj High School and others vs Pran Ballave Saha Banik and others 52 DLR 90.

Section 9-

Since fraud has been alleged by the plaintiffs in auction of their suit land and they were not made parties in the auction proceedings, the party affected by auction sale can take shelter of the Civil Court.

Parul Bala @Parul Rani Shah Mondol vs Suruj Miah and others 53 DLR 481.

Section 9-

Under this section a person is entitled to institute a suit for possession when he was dispossessed of immovable property otherwise than in due course of law.

Shan Hosiery vs Bangladesh Jatiya Shamabaya Shilpa Samity Ltd and others 54 DLR 291

Section 9-

lt cannot be the intention of the legislature that when an award was made in the name of wrong person, through collusion or otherwise, the rightful owner of such property will have no remedy under the general law to establish his title to the compensation as awarded.

Animal Protection Society, Chittagong vs Laxman Chadra Das and ors 56 DLR 522.

Sections 9 & 4-

When administrative authority or statutory tribunal is vested with jurisdiction to decide a matter on condideration of materials placed before it, such authority can either accept the materials or reject the same. The trial Court acted illegally in passing the impugned decree holding that the order of the Collector of Customs was ultra vires and without jurisdiction.

Bangladesh and another vs Banarashi Lal Sharaf and others 45 DLR 669.

Sections 9 & 115-

The provisions of the Code of Civil Procedure are not applicable in the Chittagong Hill Tracts.

Bangladesh Forest Industries Development Corporation and others vs Sheikh Abdul Jabbar 53 DLR 488.

Sections 9 & 115-

Any aggrieved party against the decision of the Divisional Commissioner in civil matters can maintain an application under Article 102 of the Constitution and not a revision petition under Section 115(1) CPC.

Bangladesh Forest Industries Development Corporation and others vs Sheikh Abdul Jabbar 53 DLR 488.

Section 9 & Order VII rule 11(d)-

In view of the case-law reported in 41 DLR 77, the general remedy of the suit under section 9 of the Code of Civil Procedure is barred by section 102 of the Waqfs Ordinance and clause ( d) of rule 11 of Order VII CPC appears to be applicable in the matter.

Shah Newaz (Md) & ors vs Shah Wali and another 54 DLR 375

Section 9 and Order VII, rule II-

The jurisdiction of the Civil Court to try all disputes of civil nature under section 9 of the Code cannot be taken away lightly-it can be so done only when it is specifically barred under any law.

Hilly Housing Co-operative Society Ltd vs Akhtaruzzaman Chowdhury and ors 54 DLR 46.

Section 9 & Order VII rule 11(d)-

The aggrieved member of the trade organisation must exhaust his remedies by way of reference to an Arbitration Tribunal before invoking the aid of the Civil Court.

Shaikh Ansar Ali & others vs Md Tofazzal Hossain and others 55 DLR 211.

Section 10—

An order for simultaneously hearing and disposal of two suits-should not be passed as a matter of course.

Bangladesh Shilpa Bank vs Bangladesh Hotels Ltd 38 DLR (AD) 70.

Section 10—

Meaning of the expression "matter in issue"-If refers to the entire subject in controversy between the parties-All matters in issue in the two suits should be identical-Court cannot apply this section where there are some issues in common and other are different issues.

Abdur Razzaque Dhali vs Ashrafun Nessa 37 DLR 271.

Section 10—

Ahmad Silk Mills Ltd vs Bangladesh Shilpa Bank 42 DLR 140.

Section 10—

The House Rent Controller having dismissed the petitioner's cases under section 19 of the Rent Control Ordinance the latter preferred Misc. Appeals before the District Judge against the dismissal and prayed for stay of the proceedings of sec suits against him pending disposal of the appeals. It is held in such circumstance that the point at issue before the House Rent Controller and the SCC Judge are distinct and different and, as such, there is no question of granting stay.

Sheikh Mohd Salimullah vs Shafiqul Alam 43 DLR 113.

Section 10-

The matter in issue in the previously instituted suit and in the subsequent one is the material consideration under section 10 CPC, not the relief sought for in the suits.

Altaf Hossain vs Abbas Ali 45 DLR 374.

Section 10—

The Court cannot apply this section when some issues are common and other issues are different.

Mazharul Haque Quraishi vs Giridhari Rishi and others 51DLR149.

Section 10—

As both the suits are over the selfsame subject-matter and both by the same parties and the suits were filed in two different courts, in all fairness the suits as well as the injunction matter should be heard by the same court.

Khaleda Rahman & another vs Integrated Services Limited and ors 53 DLR 161

Section 10—

Having regard to the facts that both the parties are litigating about the same suit land for a decree of declaration it is desirable that both the suits be tried analogously by the same Court.

Nurujjaman and others (Md) vs Md Sajjad Ali and others 56 DLR 149 .

Section 10 & Order IX rule 9-

A miscellaneous case under Order IX rule 9 of the Code is not a continuation of the suit for the pendency of which further proceedings of an execution case can be stayed.

Nurul Islam (Md) and others vs Md Maniruddin Bepari and others 49DLR 351.

Sections 10, 11and141 and Order 39, rule 1-

The Family Court constituted under the Family Courts Ordinance (XVIII of 1985) cannot grant temporary injunction under Order XXXIX, rule 1 CPC in view of the bar of section 20 of the Family Courts Ordinance No. 18 of 1985.

Maqbul Ahmed vs Sufia Khatun 40 DLR 305.

Sections 10 & 151-

Provision of section 10 of the Code is mandatory-But this provision will not take away the right conferred upon this court under section 151 of the Code on the facts and circumstances of a given case to secure the ends of justice.

Messrs Ayat Ali Bhuiyan vs Janata Bank 40 DLR 56.

Sections 10 & 151-

Analogous Trial-The principle of consolidation of suits for trial implies that similarity of identity of the matter in issue in different suits by the same party should be decided by the court once and for all. The object of consolidation is to avoid multiplicity of litigations between the same parties whenever the matter in issue is substantially or directly the same. The principle of consolidation in no way conflicts with the purpose of section l 0 CPC, on the contrary it preserves and promotes it.

Rezaul Karim vs Jahanara Begum 44 DLR 508.

Section 10, Or. VII r.11 & Or. IX r.9 –

Fresh suit-Same cause of action-Since two suits were filed one after another upon the same cause of action, the later suit ought to have been stayed. The later suit having been brought before the dismissal of the Title Suit No. 210of1981 the bar of Order IX rule 9 has no manner of application in the present case.

Hajee Abdul Latif vs Abdul Huq & others 44 DLR 601.

Code of Civil Procedure, 1908 (Section 104-114)

Sections 104 & 105—

If a party has taken an appeal or a revision against an interlocutory order, whether the decision therein can be challenged when an appeal is taken from the decree-If a party is allowed to challenge an order twice over, certain anomalies may arise, and that is why those orders could not be allowed to be challenged, if they had been challenged in the higher Court either in appeal or revision or both.

Yusuf vs Mofzal Ahmed Sowdagar 45 DLR (AD) 178.

Section 107—

Remand for rehearing-The District Judge while disposing of the appeal in the question of limitation has failed to discuss the evidence on record and take note of the statements of PWs 3 & 4 as to when and how the OPs went into possession of the case land. His judgement is, therefore, set aside and the case is sent back on remand for a rehearing of the appeal on the question of limitation only on the basis of the evidence on record.

Birendra Nath Chakraborty vs Subal Chandra Biswas 43 DLR 276.

Section 107—

Further hearing of the suit after remand is continuation of the original trial. On failure of the defendant to participate in the further hearing of the suit after remand the court below has no other option than to pass a contested decree. There is no merit in the contention that the suit should again be remanded to give an opportunity to the defendants to adduce evidence in support of their new case made out in the additional written statement.

Nurul Islam Palan & ors. vs Harez Ali Palan & ors. 45 DLR 558.

Section 107—

Both oral and documentary evidence having been available on record there was no necessity for the remand as ordered.

Abdur Razzaque Mollah vs Md Qayum Mollah & others 53 DLR 535.

Section 107—

This provision of the Code amply empowers a Court in its first appellate jurisdiction to consider all questions of fact as well as the law including the question relating to the rejection of a plaint and also the maintainability of the suit. Shafi A Choudhury vs Pubali Bank Ltd and others 54 DLR 310

Section 107—

ln view of the contentious submissions of the parties, it was the duty of the courts below to send the impugned documents to Handwriting Expert for opinion. Such opinion being not taken by either of the Courts below, the appeal is allowed, impugned judgment and decree are set aside. The First Appeal is remanded to the High Court Division with a direction to hear the appeal afresh after obtaining report from the competent Handwriting Expert as to execution of the documents.

Nurul Huq (Md)@ MN Huq vs Nirmal Chandra Dutta and another 56 DLR (AD) 143.

Sections 107 & 115-

Remand-High Court Division, as a revisional court, was not justified to send the suit back on remand to the trial Court for fresh decision on the evidence on record, without any direction to take additional evidence, when the Court itself was competent to decide the issue involved as the evidence on record was complete. When the High Court Division cannot make up its mind on the evidence already on record it should not pass an order of remand but should make up its own mind and come to a decision of its own. The appeal is remanded to the High Court Division for decision in accordance with law.

Attar Mia vs Mst Mahmuda Khatun Chowdhury 43 DLR (AD) 78.

Sections 107 & 115—

High Court Division acted beyond its jurisdiction under Section 115 of the Code of Civil Procedure in setting aside the concurrent findings of facts and sending back the case on remand to the trial Court.

Rupe Jahan Begum and others vs Lutfe Ali Chowdhury and others 49 DLR (AD) 73.

Sections 107 & 115-

The suit being an old case of 30 years the remand order ought not to have been made so lightly without any justifiable ground for remand. The case is sent back to the High Court Division for disposal in accordance with law.

Hussain Ahmed Chowdhury alias Ahmed Hossain Chowdhury and others vs Md Nurul Amin and others 47 DLR (AD) 162.

Sections 107 & 151-

The inherent power is the last reserve in the hands of the Code and cannot be used to remand the case unless there is some violence to the sense of justice which cannot be remedied otherwise than by an order of remand.

Mustafa Kamal Bhuiyan and others vs Lutfunnahar Begum and 67 others 49 DLR 368.

Section 107(2)-

In view of the provision of section 107(2) of the Code the High Court Division was competent to compare the signature of the defendant in the 'bainapatra' with his available signatures and, as such, was in error in sending back the case for the said purpose to the trial Court.

Aftab Ali (Captain Retired) vs SM Kutubuddin 56 DLR (AD) 117.

Section 107 (b )-

There may be cases( s) where right of the parties to the proceeding to send back on remand is dependent on the result of a suit filed earlier still remains pending, the order of remand by the appellate/higher Court made in such a situation cannot be considered unjustified.

Begum Lutfunnessa vs Md Shafiullah and others 55 DLR (AD) 102.

Section 107 Order I rule 10 & Order XLI, rule 23-

The suit was filed long back and in the written statement the contesting defendants disclosed the names of the heirs of Alek Jan a cosharer but the plaintiffs did not take any step to implead her heirs. In view of such facts, the plaintiffs are not entitled to pray for remand at this stage.

Moqbul Hossain Bakaul and others vs Mohammad Ali and others 51 DLR 307

Section 107 & Or. XLI r.5-

The jurisdiction of the District Judge to pass an ad-interim order pending disposal of an appeal can hardly be questioned.

Shafiuddin Sarwar vs Dhaka Club Limited and others 45 DLR 753.

Section 107 & Order XLI rules 23-25-

Unnecessary order of remand entails hardship, agony of fresh hearing and additional expenditure and the same is to be deprecated and discouraged as it tends to delay the administration of justice far from advancing its course.

Mustafa Kamal Bhuiyan and others vs Lutfunnahar Begum and 67 others 49 DLR 368.

Section 107 Order XLI rule 33-

The mere fact of first plaintiffs not having preferred an appeal or a cross-appeal or cross-objection would not by itself be sufficient to justify refusal to exercise the power contained in rule 33 of Order 41 of the Code.

Hasibur Rahman (Md) vs Shakita Begum and another 53 DLR 152.

Section 107 & Order XLI rule 31-

When the lower appellate Court is equally guilty, like the trial Court, of not writing out a proper judgment, though writing in affirmance, both the Judgments are set aside and the case is sent back on remand to the trial Court to decide it on the basis of evidence already on record.

Motleb Molla (Md) vs Dost Mohammad and others 50 DLR 613.

Section 107 & Order XLI rule 27-

Although the provision of remand should not be exercised to cure any defect or filling up any lacuna in the pleadings of the parties or the case of the parties but in order to decide the material issue concerned in the suit the order of remand was warranted in the facts and circumstances of the case.

Superintendent, PDB vs Madhumati Cinema Ltd and others 54 DLR (AD) 170.

Section 107(1)(b) & Order XLI rule 23-

The suit ought not to have been remanded for giving an opportunity to amend the plaint for making out a new case of adverse possession.

Golam Rahman vs Hazera Khatun 47 DLR (AD) 108.

Sections 110 & 115-

The proceeding of any Special Court cannot be stayed on the ground of filing a suit under the general law even if that is for the self-same matter and between the same parties. On the contrary suit filed under the general law may be stayed in appropriate circumstances.

Iftekhar Afzal and another vs Pubali Bank Limited and others 50 DLR 623.

Section 114-

A Small Cause Court is invested with the jurisdiction to entertain an application for review of its judgment or order as contemplated under section 114 read with Order XLVII rule I of the Code and decide it on merit.

Gajendra Nath Mondal and others vs Motia Begum and others 50 DLR 429.

Sections 114, 141 & Order XLVII rule 1-

There is no provision in the Constitution precluding the High Court Division to review its Judgment and order-The Court's inherent power to do justice to the parties before it is accepted one and for that purpose the form in which the Court shall dispense justice is a matter for the Court to resort to.

Serajuddin Ahmed and others vs AKM Saiful Alam and others 56 DLR (AD) 41.

Sections 114 & 151 & Order XLVII rule 1-

Since the court through inadvertence disallowed the review application for restoration of the case, although such application was competent in law, the court subsequently having restored the same by allowing application under section 151 of the Code, committed no error of law occasioning failure of justice.

Ahmad Ali Mridha and others vs Anwar Hossain and others 49DLR 460.

Section 114 & Order XLVII rule 1-

Review- Extent and scope-The right to review any decision of a Court, like the right to appeal, is a substantive right and not a mere matter of procedure.

There appears to be no rule making the provision of section 114 CPC inapplicable to High Court Division in exercise of its original civil jurisdiction.

Khapan Bittahin Society vs Nagendra Das 45 DLR 502.

Section 114 & Order XLVII rule 1-

"Mistake or error apparent on the face of the record" has been consistently held as an error which stares in the face so that it requires no elaborate argument and scrutiny. No such case has been made out in the instant case to give a helping hand to the learned District Judge in reviewing his own judgment passed on merit.

Parimal Chandra & others vs Shaheda Begum and others 52 DLR 206.

Section 114(b) & Order XLVII rule 1-

True, the government which accorded registration to the samity of the respondent No. I was present before the writ court and contested the Rule but the government, for that matter, could not be taken to be a substitute for the review petitioners in protecting their interest.

MA Bari and others vs Uttara Sarkari Officers Quarter Kalfayan Samity & ors 55 DLR 289.

Code of Civil Procedure, 1908 (Section 11-35B)

Section 11-

Res judicata-Whether mere showing that a matter directly and substantially in issue in both the suits or proceedings is enough to attract the operation of the principle of res judicata, when there is nothing on record to show that both the parties are litigating under the same title.

Ayezuddin Sheikh vs Abdul Karim 42 DLR 154.

Section 11-

The bar of res judicatti is applicable to writ proceedings on the general principle that there should be an end to litigation.

Dr Syed Matiur Rob vs Bangladesh 42 DLR (AD) 126.

Section 11-

A court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter at a subsequent stage of the proceeding.

Md Emdaduddin Sheikh vs Atiqur Rahman 42 DLR 416.

Section 11-

Bar of Res judicata hits the issue of service of notice under section 5(1a) of Act No. 13 of 1948.

Govt of Bangladesh vs Basharaullah 40DLR 554.

Section 11-

If the adverse finding is actually the decision of the suit and forms a fundamental part of the decree then it will operate as res judicata, if made incidentally.

Sachindra Lal Das vs Hriday Ranjan Das 40 DLR (AD) 56.

Section 11-

What is res judicata? An adverse finding in any judgment of a suit dismissed, particularly when it is a conclusive decision in the suit, can be challenged in higher forums. Decision in the Redemption suits was on the same issue as in subsequent suit.

Sachindra Lal Das vs Hriday Ranjan Das 40 DLR (AD) 56.

Section 11-

It may be mentioned that a decision may be Res judicata against codefendants as well if there was conflict between them as held by the Privy Council in Munni Bibi vs Tirloki Nath, 53 ILR PC 103 and Kishum Prasad vs Durga Prasad, AIR 1931 PC 281 on this analogy also the decision against Chadra Bala, in Ext B, will operate as res judicata.

Sachindra Lal Das vs Hriday Ranjan Das 40 DLR (AD) 56.

Section 11-Explanation IV-

Res judicata -Constructive res judicata- Two suits, the earlier suit was for declaration of title and the latter suit for declaration of title and recovery of possession- the latter suit is hit by section 11, Explanation V CPC.

Hafizuddin Sarker and Lakjan Bewa and others vs Bangladesh and ors 42 DLR (AD) 57.

Section 11-

Principle of Res judicata is intended not only to prevent a new decision but also to prevent a new investigation so that the same person cannot be· harassed again and again in various proceedings upon the same question.

Shomsher Ali vs Bangladesh 45 DLR 405.

Section 11-

Decision on preliminary issue - Question of res judicata-In the instant case the previous proceeding was disposed of on a preliminary issue and no decision on other issues relating to status of co-sharer of the opposite party pre-emptor was given. Where an issue is raised but not decided it does not operate as resjudicata.

Refazuddin Mondal vs Abdul Razzaque @ Rezaul Karim & ors. 43 DLR 644.

Section 11-

A question decided in a writ petition disposed of on merit cannot be reagitated in .a subsequent suit between the same parties on the principle of res judicata.

Chairman, Rajdhani Unnayan Kartipakhya and others vs Abul Hossain & others 50 DLR 249.

Section 11-

The Bankruptcy suits are not barred by the principles of res judicata due to passing of decree by Artha Rin Adalat in favour of the plaintiff of the Bankruptcy suits and against the defendants of those suits.

Shamshad Asif vs Additional District Judge and others 52 DLR 138

Section 11-

The parties and the subject-matter in both the earlier and later suit are the same and the matter in issue as to the Joss sustained by the plaintiff due to the reasons stated in the written statement of the earlier suit and plaint of the subsequent suit are materially and substantially the same- These issues were raised in the earlier suit and by necessary implication was rejected in the earlier suit and as such the suit is hit by res judicata.

Bangladesh Krishi Bank and others vs Al-Haj Md Nurul Islam & another 52 DLR 434.

Section 11-

If an issue was finally decided on merit in an earlier suit or even in a writ petition by the High Court Division, the same issue shall operate as Res judicata in view of the provision of section I 1 of the Code, in a subsequently filed suit on the same issue.

Shafi A Choudhury vs Pubali Bank Ltd and others 54 DLR 310.

Section 11—

For application of the doctrine of constructive Res judicata the conditions amongst others, 'the matter must be directly and substantially in issue' and 'has been heard and finally decided' appear to be sine qua non.

Eastern Bank Ltd and another vs Sufia Re-Rolling Mills and Steel Ltd and others 56 DLR 530.

Section 11-

When an issue is raised and decided by the trial Court but in appeal neither affirmed nor reversed, that cannot be said to be finally decided and the decision of the trial Court would not act as res judicata.

Eastern Bank Ltd and another vs Sufia Re-Rolling Mills and Steel Ltd and others 56 DLR 530.

Section 11—

Al Baraka Bank Bangladesh Ltd vs Rina Alam and another 56 DLR 588.

Sections 11, 151 & Order VII rule II –

It is well settled that where a plaint cannot be rejected under Order VII, rule 11 Code of Civil Procedure the court may invoke its inherent jurisdiction and reject the plaint taking recourse to section 151 of the Code of Civil Procedure.

Abdul Jalil and others vs Islamic Bank Bangladesh Ltd and others 53 DLR (AD) 12

Sections 11, 151 & Order VII rule II-

As the ultimate result of the suit is as clear as day light such a suit should be buried at its inception so that no further time is consumed in a fruitless litigation.

Abdul Jalil and others vs Islamic Bank Bangladesh Ltd and others 53 DLR (AD) 12

Section 11, Orders VII rule 11 & IX rule 13 –

When miscellaneous case was filed alleging suppression and non-service of summons and disposed of accordingly, the question of falsity of claim in the suit was not a matter in issue and as such the same did not come up for consideration. Rejection of plaint on the ground of Res judicata in this position is erroneous.

Osiar Rahman vs Dharus Sunnah lslamia Madrasha 52 DLR 93.

Section 11 & Order VII rule 11-

An issue of Res judicata cannot be resolved in disposing of a petition under clause ( d) of rule l I of Order VII of the Code, because in rejecting a plaint under the said provision, the Court cannot travel beyond the four comers of the plaint.

Shafi A Choudhury vs Pubali Bank Ltd and others 54 DLR 310. =

Section 11 & Order VII rule 11-

0rdinarily, a plaint should not be rejected under Order VII rule l I of the Code on the ground of Res judicata unless it is so palpably clear and obvious from a meaningful reading of the plaint that no further evidence is required.

Shafi A Choudhury vs Pubali Bank Ltd and others 54 DLR 310.

Section 11 & Order VII rule ll(d)-

Res judicata---ln the instant case where the plaintiff does not dispute the determination of her share as in the preliminary decree but disputes, on the ground of fraud, the actual allocation of share in the final decree drawn in earlier suit, the inocation of the rule of finality is beside the point.

Nannu Miah vs Mosammat Peer Banu Bibi 43 DLR 526.

Section 15-

Suit under Admiralty jurisdiction when not maintainable-Since the plaintiff is neither the owner nor consignee nor assignee of any Bill of Lading of any goods and since no damage was done to any goods of the plaintiff on board by the defendant, the plaintiff-insurer has no locus standi to invoke the jurisdiction of the Admiralty Court under section 6 of the Admiralty Court Act. The plaint be returned to the plaintiff with liberty to file it in appropriate court if not otherwise barred.

Sadharan Bima Corporation vs Bangladesh Shipping Corporation 43 DLR 548.

Sections 16(d) and 17-

Section 16(d) is a general provision involving determination of any right to or interest in immovable property-Section 17 is in the nature of a proviso to section 16.

Abdul Gafur Sikder vs Shafia Khatun 41 DLR 500.

Sections 16(d) and 17-

For the application of section 16(d) the suit must be expressly for the purpose of determining the rights in immovable property.

So far as sections 16 & 17 of the CPC are concerned Krishan, J states as follows:

"It is contended that section 16, cl (d), Civil Procedure Code applies to the case and gives jurisdiction to the Godavari Court as some of the immovables included in the will are within that Court's jurisdiction and though the Kistna Court has also jurisdiction.

Abdul Gafur Sikder vs Mst Shafia Khatun 41 DLR 500.

Sections 16(d), 94, 151 & Or. XXXVIII r. I –

Warrant to arrest the defendant-As the suit is for determination of right to immovable property, the Subordinate Judge had no jurisdiction to pass the order of arrest of the defendant nor such an order could be passed in exercise of the Court's inherent jurisdiction.

Mosharraf Hossain Mia vs Mosammat Hasina Begum 43 DLR 254.

Section 20 and Order VII, rule 10-

In choosing the forum for filing a suit cause of action is a factor though the defendant may not be a resident or may not be carrying on business having head office under jurisdiction of the court. In the suit in question it has been specifically urged that part of the cause of action arose at Dhaka as the contract out of which the claim was made was entered into and the claim was repudiated at Dhaka and as such the Civil Court at Dhaka has jurisdiction to try this suit.

National Bulk Carriers vs Bangladesh Agricultural Development Corporation 42 DLR 530.

Section 20 & Order 2(2)-

Cause of action may be defined as every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right for the judgment of the Court.

Amir Hossain Khairati vs Abdul Aziz Bepari and others 47 DLR (AD) 106.

Section 20 & Order VII rule 10-

Jurisdiction to entertain suit-A corporation can be said to carry on business at the place where it has a branch only in respect of a cause of action which arises wholly or in part at such place. If no part of the cause of action accrues at the place of the branch office the mere fact of the corporation having a branch office at the place will not give the court jurisdiction to entertain a suit.

Kh Mahatabuddin Ahmed vs Matin Tea & Trading Company 46 DLR (AD) 92.

Section 20(c) & Order VII rule 11-

Jurisdiction-When the Court rejects or refuses to reject a plaint it does so in exercise of the jurisdiction vested in it. Even where clause (d) of Order VII rule 11 of the Code is invoked the court is entitled to examine whether the suit is barred by law.

Guiness Peat (Trading) Ltd vs Fazlur Rahman 44 DLR (AD) 242.

Section 20(c) & Order VII rule 11-

In an application for rejection of the plaint on the ground of non-disclosure of cause of action the court need not dissect the plaintiff's case part by part, if a part of the cause of action arises within its jurisdiction.

Guiness Peat (Trading) Ltd vs Fazlur Rahman 44 DLR (AD) 242.

Section 24-

The High Court empowered to transfer appeal to it under section 24 of the Code.

MA Hakim vs Bholanath Sen 40 DLR 413.

Section 24-

District Judge as referred to in section 29(4) has ample authority to transfer an appeal pending before him preferred from the decision of Election Commissioner.

Expression "District Judge"-Meaning ofProvision of General Clauses Act-District Judge has unfettered power to transfer an appeal preferred to him from a decision of the Election Tribunal.

Md Zuljikar vs Abul Kalam Chowdhury 42 DLR 21.

Section 24-

In transferring a case from one Court to another the convenience of transfer which is to be taken into consideration by the Court is the convenience of both the parities.

Tambia Khatun vs Abdul Rauf Sowdagar 46 DLR 521.

Section 24-

Power of the District Court under this section is somewhat of administrative nature and discretionary. In suitable cases the District Judge can even suo motu exercise this power in the interest of justice. In that view there is no illegality in the order of transfer of the suit, particularly when both the Courts are situated within the same premises.

Bijoy Kumar Basak vs Narendra Nath Datta 43 DLR 68.

Section 24-

Though the schedule of plaint included some lands which have not fallen within the territorial jurisdiction of the court, the Court does not suffer from lack of jurisdiction in view of the fact that the suit was transferred to it by a competent court.

Zahir Shekh vs Md Yakub Ali 43 DLR 168.

Section 24-

The utterance of any party outside the Court cannot be a sufficient ground for transferring a suit.

Anwarul Huq (Md) and others vs Md Bappi Gazi and others 47 DLR 530.

Section 24-

Where an application for transfer is moved before a court the court is to hear the application after issuance of notice on the other side but where the Court suo motu passes an order under section 24 CPC no notice is required to be given to other parties. When the Court without issuing notice to other parties passed an order, the omission to hear the other side is contrary to section 24 CPC and amounts to be some mistake apparent on the face of the record.

Mathura Mohan Pandit being dead his heir Sudhir Chandra Das vs Hazera Khatun 48 DLR 190.

Section 24-

Section 24 CPC does not refer to a Judge but to the Court in the matter of review.

Mathura Mohan Pandit being dead his heir Sudhir Chandra Das vs Hazera Khatun 48 DLR 190.

Section 24-

Ripon Packaging and Accessories Ltd vs Eastern Bank Ltd and another 54 DLR 31

Sections 24 and 115-

General power of transfer and withdrawal-Notice to be given to the parties before making the transfer orderLeamed District Judge committed an error of law in making the order of transfer without serving notice.

Section 115 is a discretionary jurisdiction of the Court-The present petitioner has not suffered any hardship or prejudice by a simple order of withdrawal of the appeal from the Court of the 5th Additional District Judge to the Court of the District Judge. Dhaka-No interference is called for.

Haroon Malik (Md) vs National Bank Ltd 42 DLR283.

Section 24(1)-

District Judge derives power of transfer or withdrawal of a case under section 24.

Md Zuljikar vs Abul Kamkam Chowdhury 42. DLR21.

Section 24(1)(b)-

The power conferred on the High Court Division under section 24(i) (l)(b) of the Code of Civil Procedure regarding the withdrawal and transfer of case is an unfettered one.

MA Hakim vs Bholanath Sen 40 DLR 413.

Section 24(1)(b)(i)-

There cannot be any assumption that a District Judge who is a party to a suit will receive automatic support and sympathy of his peers while trying a suit to which he is a party. To give way to such assumption will be a ruinous invitation to a floodgate which we have no intention to open. As yet the petitioner has not given any hard evidence of the trial Court's fear or favour of and for the District Judge concerned. The High Court Division rightly di<! not encourage a transfer on a mere apprehension.

Shahida Khatun vs Abdul 'Malek Howlader and others 50 DLR (AD) 147.

Section 24(2)-

Sub-section (2) of section 24 speaks that for the purpose of section 24 Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Judge. Section 22 of the Civil Courts Act, 1887 also provides that a District Judge may transfer to any Subordinate Judge under his administrative control any appeal pending before him from the decrees or orders of Munsif.

Muhammad Zuljikar vs Abul Kalam Chowdhury 42 DLR 21.

Section 30 & Order XVI rule I-

Dildar Hossain vs Md Sharif Hossain 43 DLR 196.

Section 34—

Court is free to award interest as it considers in its discretion and not bound by the rate as stated in the contract.

Messrs MM lspahani vs Sonali Bank.37 DLR (AD)l.

Section 34-

Interest on the loan from the date it was taken as well as during the pendency of the suit, disallowed in the special circumstances of the case.

Messrs MM lspahani vs Sonali Bank 37 DLR (AD) 1.

Section 34-

Payment of interest from the date of suit to the date of decree and then till realisation is at the discretion of the court-Appellate Division in the present case disallowed all interests not only from the date of the suit till realisation but from the date of the period prior to that.

Messrs MM lspahani vs Sonali Bank 37 DLR (AD)l.

Section 34-

The award of interest is purely a matter of statutory power wherein the discretion of the Court is absolute.

Sonali Bank vs Mahbubul Amin 41DLR298.

Section 34-

The trial Court granted the relief sought for by decreeing the suit awarding interest @ 15% per annum till realisation.

Sonali Bank vs Mahbubul Amin 41DLR298.

Section 34-

Section 47B of the Insurance Act, 1938 as amended by Ordinance XXV of l 970 provides for granting of interest on claims. This provision displaces the discretion of the Court conferred by section 34 of the Code of Civil Procedure in the matter of granting interest. Hence the plaintiff-appellant is entitled to the statutory interest under section 4 7B of the Insurance Act. The Court has no discretion in the matter.

Chalna Marine Products Ltd vs Reliance Insurance Ltd and others 50 DLR (AD) 100.

Section 34-

Decree-Award of interest oendente lite till realisation of decretal amount made-Interest has been granted from the date of the suit.

Sonali Bank vs Mahbubul Amin 41 DLR 298.

Section 34-

Grant of interest from the date of the suit is covered by section 34 CPC which gives complete discretion to the Court to award pendente lite interest.

The other two kinds of interest which the Court may grant in a case under section 34 CPC are interest for the period prior to the institution of the suit. This is, of course, a matter of substantive law and is outside the purview of the section and next, the Court can award interest for the period after passing of the decree till the payment of sum due. Section 34(2) of the Code of course speaks of further interest on such aggregate sum from the date of decree to the date of payment or other earlier date. Thus it appears to us that as regards interest from the date of the suit however the position is different and the matter is covered by section 34 which gives complete discretion to the court to award pendente lite interest. Sonali Bank vs Mahbubul Amin 41 DLR 298.

Section 34-

The amended provision of the insurance Act displaces the discretion of the Court in the matter of granting interest.

Bangladesh General Insurance Co Ltd vs Chalna Marine Products Co Ltd 51 DLR 357.

Section 34-

The right to interest arises only after the claim for any principal amount is found valid and whether interest could be awarded or not in a case is also within the discretion of a Court.

Bangladesh Water Development Board vs Contractor, Manu Barrage 53 DLR 200.

Section 34(1) and (2)-

Realisation of interest pendente lite - Decree is silent about the award of interest-Sub-section (1) expostulates the different stages where interest can be awarded by the Court-But no interest can be claimed if the interest is not granted in the decree.

The contention of the appellant that "any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused" as laid down in section 11, Explanation 5, CPC, is not acceptable in this case as plaintiff undisputedly made a specific prayer for interest from the date of the suit to which he was entitled as found by the Court.

Sonali Bank vs Mahbubul Amin 42 DLR (AD) 107.

Section 34(1) and (2)-

Money suit relating to bank loan was decreed on defendant's admission of claim minus the amount already paid. The judgment-debtor was to pay the decretal dues by instalments-Admission of the appellants (judgment-debtor) was limited only in. respect of the principal sum and no indication was there in the decree either that the bank is entitled to further or any interest on the principal sum till realisation of the dues. Terms of the decree being silent as to further interest or any interest, it must be held that the Court has refused such interest.

Kadam Rosul Silicate Works vs Sonali Bank 42 DLR (AD) 294.

Section 35A –

Compensatory cost— The present writ petition is not only frivolous but also vexatious and filed to harass respondent No. 5 for which the petitioner is liable to pay him a compensatory cost of Taka 5000.

Ziaul Hoque vs The Election Commission 43 DLR 9.

Section 35A—

The Court justly discharged the Rule with the compensatory cost considering the conduct of the petitioner as vexatious aimed at delaying the execution case.

Abdur Rahman (Md) v.r Md Iqbal Ahmed and others 49 DLR (AD) 142.

Code of Civil Procedure, 1908 (Section 115)

Code of Civil Procedure, 1908

Section 115-

Since these questions had been decided finally by the Appellate Court they could not be reopened and reagitated in revision unless it is shown that the findings had not been made on due consideration of all material evidence according to established principles of assessment of evidence.

Hajee Abdus Sattar vs Mahiuddin 38 DLR (AD) 97.

Section 115-

High Court Division's exercise of its power under Section 115 when resorted to-This Court must exercise the power of revision within the tenor of the law and not hearing the matter as a second appeal. It is thus a question of any irregularity or illegality committed by the court that need be cured in the exercise of the power under Section 115 of the Code of Civil Procedure. It was contended by the learned Advocate for the petitioner that the courts below came to an illegal finding as to the relationship between the petitioner and the Managing Committee which was that of a master and servant.

Question of relationship between master and servant is one of fact-But if a decision as to such relationship has been arrived at on misreading of evidence or document, it becomes a question of law.

Sarder Ahmed Ali vs GM Ali Boksh 37 DLR 7.

Section 115-

Revisional jurisdiction of the High Court Division- To exercise that power in the revisional jurisdiction under Section 115 Civil Procedure Code there must be no provision for appeal to the High Court Division against the decision by any Subordinate Court.

Md Salim vs Zaker Ahmed 39 DLR 306.

Section 115-

A finding based on misreading or misconstruction of evidence can be reversed in revision under Section 115, CPC. No distinction has been made in Section 115(1), CPC between the order or orders of remand and decree and this court may pass any order as it thinks fit in revision. It is to be maintained that it is an established principle of law that if a finding of fact is based on misreading and misconstruction of the evidence on record or is contrary to the evidence on record it may be reversed in revision under Section 115 of the Code of Civil Procedure.

Ambia Khatun vs Serajul Islam 39 DLR 287.

Section 115-

Finding of fact can be interfered with. The crux of the instant case is whether the appellant was born of any legally married wife of Amir Ali and if the answer is in the negative his claim to sonship shall fail straight away, and the acknowledgement of Amir Ali will be of no avail and the presumption as to legitimacy raised by the acknowledgement shall stand rebutted. It is only to rebut this presumption that the suit has been brought. By a concurrent finding the Trial Court and the Lower Appellate Court held that there was no woman like Monowara Begum but she was invented for the purpose of the suit and that Amir had no wife named Monowara Begum.

Khorshed Alam vs Amir Sultan 38 DLR (AD) 133.

Section 115-

Now it is to be seen whether a Court exercising revisional jurisdiction under Section 115 CPC can interfere with this finding. A finding of fact is immune from revision unless it is shown that the finding is based on gross misreading of evidence or non-consideration of material evidence or it has been founded on misconception or misapplication of law or on misinterpretation of any material document or otherwise it is perverse being contrary to evidence on record.

Khorshed Alam vs Amir Sultan 38 DLR (AD) 133.

Section 115-Provisions of Section 115 attracted in case of irregular exercise or nonexercise of jurisdiction alone. Pakistan Supreme Court in a series of decisions reminded the High Court of the scope in second appeal under section 100 and further the Privy Council in number of decisions set out the distinction between sections 100 and 115. The latter is attracted in the case of jurisdiction alone, the irregular exercise or nonexercise of it or the illegal assumption of it. The section is not directed against conclusion of law or fact in which the question of jurisdiction is not involved. Valakrishna Unayar vs Vasudeva Aiyar 22 CWN 50 (PC).

Abdul Mannan Khan vs Bangladesh 38 DLR (AD) 201.

Section 115-

Privy Council's ruling that lower court's decision erroneous on fact and law-No interference called for.

Abdul Mannan Khan vs Bangladesh 38 DLR (AD) 201.

Section 115-

The very words "an error apparent on the face of the record" clearly show that the error must be such which can be detected or noticed without any lengthy argument.

No error could be said to be apparent on the face of record if it was not self-evident and if it required an examination or argument to establish it.

Abdul Mannan Khan vs Bangladesh 38 DLR (AD) 201.

Section 115-

Jurisdiction-Court's jurisdiction not exercisable over executive action when prohibited by law-But court can prove whether executive acted within the authority permitted.

Abdul Mannan Khan vs Bangladesh 38 DLR (AD) 201.

Section 115-

"The Civil Court cannot sit on the judgment over the decisions of the Revenue Officers if they have acted in exercise of their jurisdiction."

Abdul Mannan Khan vs Bangladesh 38 DLR (AD) 201.

Section 115-

Concurrent finding of fact supports the plaintiffs case that Salimabad hat sits on Tuesday and Friday .... This cannot be interfered with.

Abdul Mannan Khan vs Bangladesh 38 DLR (AD) 201.

Section 115-

Concurrent finding of fact was upset by the High Court Division which held that decision of the local authority cannot be challenged-This view cannot be supported.

The High Court Division in revisional jurisdiction disturbed the finding of fact since "there are errors apparent on the face of record." The concurrent finding of fact was upset in the revisional jurisdiction. Rule as to concurrent finding of fact is not so rigid that it might not be departed from if such a state of things existed as facts appearing from some undisputed document which are completely destructive of the finding of fact by the Courts below.

Abdul Mannan Khan vs Bangladesh 38 DLR (AD) 201.

Section 115-

High Court Division can rectify any error of the courts below suo motu coming to its notice.

Under the provisions of Section 115 CPC the High Court Division can rectify the error of law in a matter which has come to its notice or suo motu where the impugned order has been passed by a court. subordinate to the High Court Division in which no appeal lies thereto.

In this case the order allowing the plaintiff to introduce a new story in his deposition without amending the plaint is an illegality and violative of provisions of Order VI, rule 7 CPC. The order was passed by the learned Munsif and there is no appeal provided for before the High Court Division under CPC against the said portion of the order. Therefore, in view of the power conferred by Section 115 CPC this court is competent to exercise the power and rectify the error of law committed by the learned Munsif in passing that portion in the said order. This view also finds support in the case of Ashwini Kumar Karmakar and others vs Hari Mohan and others reported in 36 DLR (AD) 1.

Ranjit Kumar Rakshit vs Sudhir Kumar Chowdhury 38 DLR 39.

Section 115-

Time for suit for specific performance of contract is 3 years from the date of refusal. The High Court Division certainly in a proper and fit case can set aside the finding of fact arrived at by the court of appeal below, more so when the said finding is contrary to the finding of the Trial Court and arrived at without adverting to the reasoning that weighed with the trial Court.

Monindra Mohan Kar vs Ranadhir Datta 38 DLR 240.

Section 115-

Question of maintainability of the appeal though not raised in the Appellate Court below, can be raised in the Revisional Court as it is a question of law-Revisional Court can interfere into an illegal order in the interest of justice.

Ayezuddin Sheikh vs Abdul Karim Sheikh 42 DLR 154.

Section 115—

Estoppel - As long as the High Court Division's judgment is not appealed against or its findings not set aside on any ground whatsoever, the third party petitioner is estopped from filing and maintaining any application for being added as a party to suit concerning the abandoned property in question and claiming independent title.

Golam Morshed vs Mrs Farhad Jahan 42 DLR 223.

Section 115—

The Criminal Court's finding of possession is not admissible in evidence in a civil suit.

Mamud Raja Bhuiya vs Md Lal Miah 40 DLR 271.

Section 115—

-This Court in exercise of its revisional jurisdiction can cure a failure of justice occasioned by a wrong view of law taken by Courts below.

Asgar Ali vs Addi Deputy Commissioner 40 DLR 157.

Section 115—

Scope of Section 115 CPCMere error of law is not a ground for revision.

Trading Corporation of Bangladesh vs Syed Sajeduzzaman 40 DLR 406.

Section 115-

Even if impugned decree suffers from error of law, it has not occasioned any failure of justice.

Trading Corporation of Bangladesh vs Syed Sajeduzzaman 40 DLR 406.

Section 115—

Interference with finding of fact-finding based on due consideration of evidence was beyond the scope of revisional Court to interfere with.

Md Jashimuddin Kanchan vs Md Ali Ashraf 42 DLR (AD) 289.

Section 115-

Whether a revision under Section 115 of the Code of Civil Procedure is maintainable in respect of the judgment passed by the Arbitration Appellate Tribunal. At the outset it is considered as to whether a revision under Section 115 of the Code of Civil Procedure is maintainable or not. A reference to section 34(3)(4) of the Ordinance shows that an Arbitration Appellate Tribunal shall consist of a Member who shall be appointed by the Government from amongst persons who are or have been District Judges and the decision of the Arbitration Appellate Tribunal shall be final.

Khaled Akbar vs Bangladesh 42 DLR 66.

Section 115—

An Election Tribunal being not a Civil Court is not amenable to revisional jurisdiction of the High Court Division.

Lastly, since the Election Tribunals are not civil Courts they are also not amenable to the revisionaljurisdiction of the High Court Division. This view was also taken in the case reported in 38 DLR 262.

Mahmud Hossain vs Sayeb Ali & ors 41DLR44.

Section 115—

The High Court Division is not bound to interfere merely because the conditions of Section 115 have been satisfied, but this discretionary power would be exercised judicially to interfere only when ends of justice demand it.

Zehad Ali vs Kharshed Ahmed 41 DLR 336.

Section 115—

High Court Division cannot disturb the findings of the Court of Appeal on question of fact in exercise of its revisional jurisdiction.

AKM Ruhul Amin vs (All-haj) Abdul Latif 41 DLR 206.

Section 115—

Power to add a party is not open to revision unless the order is contrary to legal principles governing the exercise of such discretion.

The power to add a party is discretionary and unless that power was exercised arbitrarily or fancifully it cannot be interfered with under Section 115 of the Code of Civil Procedure and even an improper or a wrong exercise of discretion is not open to revision, unless the order is contrary to legal principles governing the exercise of such discretion, or the court has acted perversely.

Ishaq Hossain Chowdhury vs Mrs Shamsun Nessa Begum 41DLR22.

Section 115—

Question of possession of disputed land and that of payment of rent after the alleged auction-sale having not .been resolved by Courts below, it has occasioned a total failure of justice.

Sourja Bala Devi vs Habibullah Sheikh 41DLR464.

Section 115—

Non-consideration of material evidence and arriving at a decision based on no evidence resulted in an error in the Appellate Court's decision occasioning a failure of justice.

Haji Keramat Ali Master vs Lehaj Uddin Talukder 41DLR447.

Section 115—

Haroon Malik (Md) vs National Bank Ltd 42 DLR 283.

Section 115—

Jurisdictional defect in the judgement is not itself a ground for revision unless such defect has resulted in an error in the decision occasioning failure of justice. Abul Kashem Md Lutfullah vs Shaiful Islam (Bumb) 46 DLR 563.

Section 115—

Gross professional negligence causing serious injury cannot be a ground for mandatory injunction to get back possession of the disputed property i.e. a cinema hall. For the loss alleged, the petitioners' remedy lies elsewhere.

Hossen & Co Ltd and others vs Bangladesh Shipla Bank and others 46 DLR 702.

Section 115—

When the High Court Division is in seisin of the matter to consider the legality of the order of status quo vacated by the District Judge during the pendency of the appeal thereon, the latter should not have sent the appeal back on remand to the trial Court on the reasoning that as the injunction touches the merits of the suit, the same should be disposed at the time of its final hearing.

Wahid Khatun Bibi vs Khurshid Alam Mia 46 DLR 279.

Section 115—

Since the High Court Division can suo motu enter into the question of law in exercise of its revisional power, the application for treating the memorandum of appeal as an application under Section 115 CPC is allowed.

Israil Hossain vs Himalaya Jee & Cold Storage Ltd 46 DLR 44.

Section 115—

High Court Division set aside the finding of the Appellate Court on a reappraisal of the evidence and thereby committed an error in law when there was no misreading of evidence and misconstruction of the document.

Shamser Ali Md vs Mosammat Kafizan Bibi 44 DLR (AD) 231.

Section 115—

Granting of reliefs summarily on a revisional application without issuing any rule on the opposite party is neither legal nor fair.

Abdul Wahab vs Ali Ahmed and another 44 DLR (AD) 55.

Section 115—

Revisional jurisdiction- The Appellate Court having given the finding that there was no service of summons in the suit, it was no function of the High Court Division to sit in appeal over this finding while exercising revisional jurisdiction. The High Court Division was only concerned with the question as to whether the appellate Court, in giving that finding, committed any error of law resulting in an error in the decision occasioning failure of justice.

Bangladesh vs Chand Mia & others 44 DLR (AD) 98.

Section 115—

Revisional powers-Plea of exceeding jurisdiction by entertaining new facts given in the supplementary affidavit- The supplementary affidavit gave explanation (as to delay in filing the appeal) with further and detailed facts. High Court Division pointed out the omissions made by the District Judge in considering the prayer for condonation of delay and found reasonable explanation therefor. This is within the limits of the court's revisional power.

Mohammad Ali & others vs Circle Officer (Revenue) Dhaka &others 44 DLR (AD) 15.

Section 115—

Finding though concurrent is open to interference if it is based on no evidence.

Kanak Mala vs Md Safiuddin 43 DLR 38.

Section 115—

Taking revision in a matter in which appeal lies-High Court Division assuming revisional jurisdiction taking into consideration circumstances of exceptional nature, in a matter in which appeal lies, cannot be accepted as a general principle for determining the point as to whether revision application lies to the High Court Division against the order from which appeal lies before the District Judge. The present case having arisen from the order against which appeal has been provided, revision is not maintainable, no matter whether the appeal has been provided for either before the District Judge or the High Court Division.

Mansur Ali vs Janata Bank 43 DLR 394.

Section 115—

Revision-Scope of revision after amendment of Section 115 CPC in 1983- No order of the Court below can be revised unless error of law committed by the Court below resulted in an error in the decision occasioning failure of justice. Attempt on the part of the defendant-petitioners to revise the valuation of the suit by hearing issue No. 2 regarding valuation was nothing but dilatory tactics when trial of the suit had already started taking up all the issues including the issue regarding valuation. The impugned order accepting the valuation as put by the plaintiff did not occasion any failure of justice and, as such, does not call for interference in exercise of revisional jurisdiction.

Abul (Md) Kashem vs Ashrafuzzaman 43 DLR 596.

Section 115-

Decree of dismissal could not be set aside in the rehearing case by anybody other than the plaintiff. If the Court embarks upon deciding the matter at the instance of one who was not a party to the suit, then certainly that would go to the root touching the merits of the case causing prejudice to the defendant.

Shaikh Shamsuddin Ahmed vs Nazmul Huda 45 DLR 371.

Section 115—

Ex parte disposal of revision case when not sustainable-The record of the case was re-called to the permanent seat of the Court from Barisal Bench and posted for hearing at the instance of the petitioner. It was not a matter of fairplay not to notify the opposite party about the hearing and, as such, the judgement passed ex parte making the Rule absolute is liable to be recalled.

Malik Mohammad Amin Anowar vs Shahjahan 45 DLR 150.

Section 115-

0bjection as to limitation having not been raised in the written statement or during the hearing of the case either at the trial or the Appellate Court or before the High Court Division except at the last stage, such objection is not maintainable in law.

Kalipada Saha vs Bangladesh 46 DLR 327.

Section 115-

In disturbing the concurrent judgements of the courts below, it was imperative on the part of the High Court Division to reverse the concurrent finding and to hold that the respondent had made out a prima facie case for injunction.

Haji Nurul Alam @ Haji Nurul Alam Sawdagar vs Al-Ha} Abdus Sobhan Sawdagar Wakf Estate and another 45 DLR (AD) 168.

Section 115-

The trial Court committed a patent illegality in making the ex parte decree on a date on which the suit was not fixed for hearing ex parte and for this reason the decree is liable to be set aside.

Hazeran Nessa vs Nasiruddin Mahmood 44 DLR 28.

Section 115-

Revisional Court will be slow in interfering with the judgment of the court of appeal below. Interference may be called for ifthe judgment of the court of appeal is not based on due consideration of evidence and is the product of surmises and conjectures.

Janab Ali (Md) vs Moslemuddin Md 44 DLR 291.

Section 115-

Judgment by appellate Court when not sustainable-Where such a court reverses the decision of a primary court, the law imposes upon the appellate Court an imperative duty of giving an adequate judgment. In this view the appellate Court judgment being a slipshod one occasioned failure of justice. The appeal was therefore remanded to the appellate Court for decision after full-fledged discussion of the evidence on record.

Abdus Subhan vs Abdul Maleque 44 DLR 94.

Section 115-

Remand-When revisional Court need not pass order of remand-The revisional application could be disposed of by the High Court Division without sending the case on remand to the trial Court. Both oral and documentary evidence having been available on record there was no necessity for the remand as ordered by the High Court Division.

Abdul Mannan vs Akram Ali 43 DLR (AD) 125.

Section 115-

A revisional Court acts beyond its jurisdiction in setting aside concurrent finding of fact, when there is no misreading and misappropriation of the evidence on record.

Shambhu Nath Poddar vs Bangladesh Railway 43 DLR (AD) 82.

Section 15—

Court of appeal below acted illegally in allowing the appeal and dismissing the suit without reversing the finding of the trial Court regarding title of the plaintiffs and some of the defendants in the suit property and the saham alloted to the respective parties.

Mahamudul Hoque and 5 others vs Nowab Ali Chowdhury and I 8 others 49 DLR 92.

Section 115—

The extension of time is a matter of concession to the discretion of the court and there is no reason to review and set aside the discretion exercised though provisionally at the time of issuance of the Rules.

Former Modern Shishu Hospital, presently Institute of Child Mother Health vs Abdus Salam, son of Late Yusub Molla and another & 5 others 49 DLR I 60.

Section 115—

The judgment and decree of the court of appeal below, which is not in reversal of the findings arrived at by the trial Court are not sustainable in law. Abdul Gani Kha vs Md Abdul Aziz Azizur Rahman and others 49 DLR 172.

Section 115—

As the Court below was proceeding with the execution case in pursuance of specific order of this Court in another case the petitioner could have moved this Court for modification of that order but he could not pray for stay from the Court below which is bound by the order of this Court. Additional Deputy Commissioner (Rev) and Assistant Custodian;

Vested Property vs Syed Tahammul Hossain and others 49 DLR 318.

Section 115—

If it is found that the appeal is not maintainable under section 17 of the Arbitration Act the same may be converted into a revisional application.

Bangladesh Water Development Board and others vs Progati Prakaushali and another 49 DLR 335.

Section 115—

Written statement though submitted after a long lapse of two years is accepted, for, parties should be allowed to submit pleadings for proper dispensation of justice.

Autul Krishna Mondal and another vs Chintaram Roy and others 49 DLR 525.

Section 115—

Although there is no period of limitation prescribed, it is now a settled practice that revisional application be filed within 90 days from the date of the impugned order as necessary in case of appeal unless delay is explained to the satisfaction of the court.

Ramizuddin alias Kalu Mia Mistri and others vs Kazi Tajul Islam and others 49 DLR 612.

Section 115—

The findings arrived at by the courts below have been rested upon consideration and discussion of legalevidences and materials on record and also on a correct and proper analysis of the legal aspects involved in the suit and the findings are findings of fact which are not liable to be disturbed by this court in the exercise of power under Section 115 of the Code of Civil Procedure.

Zamir Uddin Ahmed vs Ataul Huq and others. 49 DLR 622.

Section 115-

This Court in revisional jurisdiction is not powerless and can for the ends of justice rectify any illegality committed by the inferior court even if such defect is not pointed out by either party.

Abdus Satter and others vs Abdun Noor and others 49 DLR 414.

Section 115-

If there is misreading of evidence and non-consideration of some material evidence then it was incumbent on the revisional court to consider the same and to arrive at a proper finding on the material evidence on record and to finally dispose of the case.

Hussain Ahmed Chowdhury alias Ahmed Hossain Chowdhury and others vs Md Nurul Amin 47 DLR (AD) 162.

Section 115—

Since both the parties agreed the case is sent back to the trial Court on open remand for retrial.

Syed Abdul Mannan and others vs Md Mujahar Ali Mridha & others 50 DLR 81.

Section 115—

When the contending parties adduce evidence in support of their respective cases, whether oral or documentary, a duty is cast upon the Court to consider the same and thereafter · to arrive at its conclusions with reference thereto but it has no right to ignore the evidence of a party irrespective of the value that it may carry.

Abdur Rahim vs Arifur Rahman and others 50 DLR 166.

Section 115—

A court of revision under Section 115(1) CPC can interfere with the findings of fact, as the final court of facts, only in exceptional circumstances when the findings are shockingly perverse or these are vitiated by nonreading and mis-reading of the material evidence or mis-construction of any important documents affecting the merit of the suit.

Abdur Rahim vs Arifur Rahman and others 50 DLR 166.

Section 115—

Order refusing to reject plaint having not been passed on proper consideration is set aside and the trial Court is directed to decide the matter afresh in accordance with law.

Abul Kalam Azad and others vs Md Kamrul Hasan and others 50 DLR 259.

Section 115-

There is a complete ouster of jurisdiction of the High Court Division for interference under Section 115( 1) of the Code of Civil Procedure against any interlocutory orders passed by the Artha Rin Adalat.

Kazi Gowaherul Islam (KJ Islam) vs Standard Co-operative Credit Society Ltd and another 50 DLR 333.

Section 115—

The mere error of law without occasioning failure of justice cannot by itself be a ground for interference under Section 115(1) of the Code.

Advocate Md Abdul Hamid vs Md Fazlur Rahman 50 DLR 441.

Section 115—

Interlocutory order passed by the High Court Division granting injunction upon a finding of prim a facie case and with a direction to dispose of suit within 3 months need not be interfered with.

Shahidul Islam (Md) and another vs Md Sayedur Rahman and others 47 DLR (AD) 70.

Section 115—

There being a total nonconsideration of all the witnesses of the preemptees the learned Single Judge acted wrongly in refusing to exercise his revisional jurisdiction in a case where due to non-consideration of the material evidence on record an erroneous decision has been arrived occasioning a grave failure of justice.

Abdul Mazid Howlader and another vs Lahajuddin How/ader & others 48 DLR (AD) 160.

Section 115—

The revisional court is competent to interfere in a case of nonconsideration of material evidence which is specifically material for the determination of the material issue. Abu Bakar Siddique (Md) vs Additional Deputy Commissioner and others 48 DLR (AD) 154.

Section 115-

The finding that the transactions in respect of the suit lands were not benami being essentially a finding of fact is immune from revision unless it is shown that the finding is based on gross misreading of evidence or on non-consideration of material evidence or it has been founded on misconception of law occasioning failure of justice.

Rupe Jahan Begum and others vs Lutfe Ali Chowdhury and others 49 DLR (AD) 73.

Section 115—

High Court Division have committed grave error of law in passing the impugned order giving the respondent full relief in a summary manner.

Karnafuli Cotton Mills Ltd vs United Commercial Bank Ltd and others 49 DLR (AD) 130.

Section 115—

Disposal of the revisional application without any Rule nor any notice being served upon the appellant for appearing in the case when the matter was taken up for hearing is illegal.

Shamsul Arafin Khan vs Kazal Miah and others 49 DLR (AD) 175.

Section 115—

The revisional Court may in appropriate cases consider additional evidence, but in the present case the finding that the respondent was terminated from service not by a competent authority is not very material, because the reason given by the petitioner for termination of service of the respondent, namely, joining an illegal strike has been proved not to be true by the lower appellate Court.

Managing Director, Janata Bank vs Md Bazlur Rahman and others 50 DLR (AD) 17.

Section 115—

The material findings of the trial Court that the agreements were genuine and consideration passed were not reversed by the lower appellate Court as a final court of fact and hence the High Court Division rightly found that it is a proper judgment of reversal.

Jahanara Begum vs Md Aminul Islam Chowhury and others 50 DLR (AD) 52.

Sections 115—

If the High Court Division is satisfied in exercise ofrevisional authority that the lower appellate Court has failed to consider any material evidence in reversing a finding of fact arrived at by the trial Court on assigning proper reasons therefor, the proper course will be to send the case back on remand to the appellate Court for re-hearing the appeal upon proper assessment of the evidence. But there may be cases where in the interest of justice the High Court Division may also consider the evidence itself which was not considered by the lower appellate Court while upholding the decree of the Court of appeal below.

Golam Sarwar (Md) & ors. vs Md Liakat Ali and others 50 DLR (AD) 67.

Section 115—

Revisional power is a discretionary one not to be exercised where there is an alternative remedy open to a party.

Ranu Begum and another vs Kazi Liakat Ali and others 50 DLR (AD) 142.

Section 115—

True, the High Court Division has interfered with the findings of fact by the last Court of fact but the interference being based on detecting error apparent on the face of the record need not be disturbed.

Chand Biswas and others vs Abdul Khaleque Sheikh and others 51 DLR (AD) 55.

Section 115—

The High Court Division as a revisional court had hardly any jurisdiction to set aside the findings of fact by the appellate Court and that also without discussing any fault in the factual finding by the said court.

Kochi Mia @ Khocha Mia vs Suruj Mia being dead his heirs Md Fazlur Rahman and others 51 DLR (AD) 57.

Section 115—

In appropriate cases the revisional Court can consider additional evidence.

Managing Director, Janata Bank vs Md Bazlur Rahman and others 51 DLR (AD) 141.

Section 115—

Discretion when exercised with the ends of justice in view the High Court Division could not interfere with in revisional jurisdiction.

Abdul Kader Mondal and others vs Shamsur Rahman Chowdhury 51 DLR (AD) 253

Section 115—

The reduction of maintenance not being a bone of contention between the parties, the decree was interfered with in revision in excess of jurisdiction.

Heftur Rahman (Md) vs Shamsun Nahar Begum and another 51 DLR (AD) 172.

Section 115—

Error in the decision of the Subordinate Courts do not by itself justify interference in revision unless it is manifested that by the error substantial injustice has been rendered. The decision which is calculated to advance substantial justice, though not strictly regular, may not be interfered with in revision.

Nurul Abser Chowdhury vs Jesmin Akther 51 DLR 352.

Section 115—

Decision recorded by a Court can be set aside or reversed not by the same Court but by the Superior Court. The same Court cannot sit on appeal on its own decision.

Muzaffor Hossain vs Md Shahidullah and others 51 DLR 400.

Section 115—

This Court is always in favour of supporting a discretion exercised by a Court subordinate to it unless it can be shown that the discretion has been exercised erroneously and, perversely.

Lakshmi Bazar Shahi Masjid Committee and another vs St Francis Xavier's Girls High School 51 DLR 557.

Section 115—

Under provisions of Article 109 of the Constitution the High Court Division can call for the records of any case from any subordinate civil Court and pass an appropriate order if any presiding officer of any such court fails to comply with any direction of the High Court Division made in any case.

State vs Farooq Ahmed, Subordinate Judge 51 DLR 515.

Section 115—

The Arbitrator appointed under section 27 of the Ordinance is a persona designata, i.e. a person designated not by name but by as one of a class. Such Arbitrator appointed under section 28 is not a civil court at all within the meaning of the Code and as such, he is not a court subordinate to this court. So, the instant revision application under Section 115 of the Code is also not maintainable.

Thomarshu alias Majhi vs Bangladesh 52 DLR 516.

Section 115—

In a case where a statute bars entertainment of a revision the exercise of supervisory power under Article 109 of the Constitution is not available.

Hosne Ara Begum and another vs Islami Bank Bangladesh Limited 53 DLR (AD) 9.

Section 115—

The Courts below having considered the reasons for the delay in making the application for review, it is difficult to go into the question of exercise of discretion by them.

Sonali Bank and others vs Md Jalaluddin and another 53 DLR 48.

Section 115—

In the absence of any materials before it, and there being no objection raised at the time of recount before the appropriate forum, this Division cannot hold that the Election Tribunal did not recount votes in accordance with the rules nor accept any of the invalid votes as found by the Election Tribunal as valid.

Shah Alam Patwari (Md) vs Md Siddiqur Rahman Bhuiyan and others 53 DLR 390.

Section 115—

Bangladesh Forest Industries Development Corporation and others vs Sheikh Abdul Jabbar 53 DLR 488.

Section 115 –

The High Court Division is not vested with the revisional jurisdiction against any order passed by the Artha Rin Adalat.

Shahidullah (Md) vs Eastern Bank Ltd and others 54 DLR 41.

Section 115-

High Court Division is always in favour of supporting a discretion exercised by a Court subordinate to it unless it can be shown that the discretion has been exercised arbitrarily and perversely.

Matasim Ali Chowdhury vs Md Ismail 54 DLR 104.

Section 115—

A court of Revision can interfere with the findings of facts by the court of appeal below as a final court of facts only in exceptional circumstances when the findings are shockingly perverse.

Ganesh Chandra Das vs Arati Acharjya 54 DLR 348.

Section 115—

The acceptance of the secondary evidence by the Subordinate Judge and his decision in the suit relying upon such nonadmissible evidence are errors of law apparent on the face of the record.

Government of Bangladesh vs Mirpur Semipucca (Tin-shed) Kalayan Samity & others 54 DLR 364

Section l15-

The High Court Division was in error in deciding and reversing the question of fact in respect of possession and Istafa (surrender) which were found in favour of the appellants by the courts below.

Abul Hussain and others vs Afezuddin Mondal and others 55 DLR (AD) 93.

Section 115—

Decisions of Court of Appeal being last and final court of fact are not open to interference in Revisional Jurisdiction unless it is shown that the same have been based upon gross misreading of evidence or founded on misconception or misapplication or misapprehension of law or of any misinterpretation of any material document or otherwise perverse being contrary to law, evidence and materials on record.

Iqbal Hossain Talukder (Md) vs Md Joinal Abedin Talukder and 76 ors 55 DLR 604.

Section 115—

This extraordinary power vests in the High Court to correct error of law of the Subordinate Court which results in failure of justice. Such power therefore cannot be exercised when an appeal shall lie to it.

Standard Bank Ltd vs Tripos Engineering and Trading Company (GD) and others 56 DLR 55.

Section ll5-A decision passed by the Election Tribunal is not amenable to the revisional jurisdiction of the High Court Division. Mahbubur Rahman vs Syed Mostofa Jaman and others 56 DLR 322.

Section 115—

Re-hearing - Mere filing of a leave petition does not ipso facto take away the jurisdiction of this Court, unless any interim order was passed by the Appellate Division regulating the proceeding of the High Court Division.

Atiqur Rahman Mullah vs Abul Kalam Azad 56 DLR 373.

Section 115—

Since it is found that both the courts below did not at all consider or assess the evidence on record, this court does not feel it proper to embark upon a task which is specifically assigned to the trial Court and not to a revisional court like the present one.

Mozibar Rahman Molla (Md) and another vs Md Rehazuddin and others 56DLR 427.

Sections 115 & 100 (repealed)—

Extent of revisional power-With the repeal of section 100 and re-enactment of Section 115 in its new garb, the power of the High Court Division has increased to a large extent. The strict binding effect of concurrent findings of fact has been diminished to a large extent by introducing the words "error in the decision occasioning failure of justice".

Bangladesh vs Md Aslam 44 DLR 69.

Sections 115 and 107—

Remand - High Court Division, as a revisional court, was not justified to send the suit back on remand to the trial Court for fresh decision on the evidence on record, without any direction to take additional evidence, when the court itself was competent to decide the issue involved as the evidence on record was complete. When the High Court Division cannot make up its mind on the evidence already on record it should not pass an order of remand but should make up its own mind and come to a decision of its own. The appeal is remanded to the High Court Division for decision in accordance with law.

Attor Mia and another vs Mst. Mahmuda Khatun Chowdhury and others 43 DLR (AD) 78.

Sections 115 and 151-

When the party failed to move the High Court Division under Section 115 CPC within time against the order of the Additional District Judge that being barred by limitation, it was open to him to make an application under section 151, before the Additional District Judge. The Additional District Judge improperly rejected his application under section 151 on the ground that he failed to prefer the appeal before the original order was passed by the Additional District Judge.

Rehanuddin vs A Hakim 39 DLR 21.

Sections 115 and 151—

Re-opening of a Revisional matter - There is no provision in the Code for rehearing of Revision case and reviewing of judgment once delivered by the High Court Division on merits. The Court cannot set aside its own order passed on merits unless the Court has jurisdiction to do so. The kind of order sought for may be passed if it is necessary for the ends of justice so long as the High Court Division is seized of the matter, but not when its jurisdiction and power have ceased after the disposal of the matter on merit.

Buddhi Sankar Biswas vs Akbar Ali Sheikh 44 DLR 242.

Sections 115 & 151—

Section 115(1) of the Code of Civil Procedure is not maintainable against an order passed by the Artha Rin Adalat. We act under section 151(1) of the Code and make the Rule absolute with a direction to the Adalat to return the plaint to the filing Advocate for presentation before the proper court.

Kazi Gowaherul Islam (KJ Islam) vs Standard Cooperative Credit Society Ltd and another 50 DLR 333.

Sections 115 & 151—

The High Court Division as the Court of revision must be deemed to have power to see that a court below does not unjustly take away the character of a party or of a witness or a counsel before it.

Bibhu Ranjan Das vs Hakim Ali and others 53 DLR 114.

Sections 115 & 151—

Whenever a party is aggrieved due to the fault of the court occasioning failure of justice, this court is not only competent to undo the wrong done to a party but also it is imperative in the interest of justice to do so.

Pubali Bank Ltd vs Abdul Jalil Bhuiyan 53 DLR 217.

Sections 115 & 151 & Order IX rule 13—

Pubali Bank Limited vs Mazid and Co and others 54 DLR 144.

Section 115 & Order IX rule 13—

The finding as to non-service of summons is a finding of fact not to be interfered in revision unless the finding is perverse or not based on evidence.

Arshad Ali vs Momtaz Ali 45 DLR 164.

Section 115 & Order XXXIX rule 1—

The discretionary relief of temporary injunction having been granted by the courts below the High Court Division was not correct in disturbing the same without taking into consideration the finding of fact on consideration of which the injunction was granted.

Rupban Bibi vs Aynal Kha & other 44 DLR (AD) 144.

Section 115 & Order XLII rule 1—

It is true no appeal was preferred against the order of dismissal of the suit on question of its maintainability but a review application was preferred. Since the order of dismissal was absolutely illegal and without jurisdiction, no technical point should stand in the way of doing substantial justice and, as such, the order of dismissal of the suit is set aside.

MA Majid vs M Ahmed 46 DLR 258.

Section 115 and Order 21, rule 61—

The claim that was disallowed under Order XXI, rule 61 is now not only appealable as stated above but also revisable under Section 115(1) CPC.

The impugned order against which the appellant has come is an order under rule 61 of Order XXI of the Code of Civil Procedure disallowing Bangladesh Shipping Corporation (garnishee) to the property attached by the executing Court and as such it may be treated as appealable under rule (1)(II) of Order XLIII CPC as amended by Ordinance XLVIII of 1983. Before the said amendment made in 1983 even if appeal did not lie, revision under Section 115(1) CPC would lie before this Court.

Bangladesh Shipping Corporation vs Rajique Ahmed 40 DLR 36.

Section 115(1)—

Period oflimitation for filing a revisional application before the High Court. There is a long practice being followed since the days of Dhaka High Court that a revisional application is to be filed within the period of ninety days, prescribed by law for an appeal, and that the High Court Division may in its discretion entertain an application beyond that period in a suitable case where there is no negligence or !aches on the part of the petitioner. This is a long standing practice, otherwise sound and reasonable, and it does not call for any departure.

Deputy Commissioner vs Kobab Ali 39 DLR (AD) 205.

Section 115(1)—

The District Judge acting as an Election Appellate Tribunal is a persona designata-His decision is revisable under section II 5 of the Code.

Abdul Mutalib vs Md Mostakim Ali and others 51 DLR (AD) 228.

Section 115(1)—

None of the judges sitting singly and exercising jurisdiction under Section 115(1) of the Code were invested with the jurisdiction to strike down a piece of legislation which is the absolute jurisdiction of a properly constituted court exercising jurisdiction under Article 102 of the Constitution. Hosna Jahan (Munna) vs Md Shajahan (Shaju) and others 51 DLR 295.

Section 115(1 )—

The concluding words of Section 115(1) of the Code of Civil Procedure says, "the High Court Division may make such order in the case as it thinks fit" have conferred a wide power on this Court, in order to do justice in a case, which includes the power to dispose of the case finally.

Madinullah Miah vs Md Abdul Mannan & anr 54 DLR 507.

Section 115 and Order I rule 10—

The Courts below were not justified in this instant case in dismissing the suit without affording an opportunity to make good the defect of parties.

Sabed Ali Howlader and others vs Abdul Barek and others 51DLR204.

Section 115(1) & Order 7 rule 11—

When a person is suspended without any material whatsoever against him and he had been kept in that condition for months together, the Court should interfere in such a case in the interest of justice.

Altaf Hossain (Md) vs Md Abdul Rahim and others 51 DLR 527.

Section 115 & Order VII rule 7-

The error of law must have to be found within the framework of the suit and not beyond. When the learned Judges themselves acknowledged that their suo motu query was beyond the suit, it was a well-confessed exercise of acting without jurisdiction.

Hefzur Rahman (Md) vs Shamsun Nahar Begum and another 51 DLR (AD) 172.

Section 115(1), Order 39, rule 1 and Order 43 rule 1(r)-

On an application for temporary injunction in a suit for declaration of title the Assistant Judge passed an ad-interim order of injunction restraining the defendant Nos. 1-3 from acting as the office-bearers of Bangladesh Chalachitra Paribeshak Samity-The defendant preferred the instant Civil Revision as the forum of appeal remained closed because of the vacation of the Civil Court. The plaintiff challenged the propriety of the issuance of the rule under Section 115(1) CPC on the ground that the impugned order was appealable under Order XLIII, rule l(r) CPC. On consideration of the facts and circumstances of the case and the decisions cited from the Bar, the High Court Division held that revision is not barred merely because the impugned order is appealable to the Court of District Judge.

Wahid Sadeque vs Mozibar Rahman Chowdhury 42 DLR 220.

Section 115(1), Order 39, rule 4—

Material suppression of facts is enough for setting aside the order of temporary injunction granted by this Court on 23-11-1988.

Karnafuli Paper Mills Sramik Karmachari Union vs Registrar of Trade Unions Chittagong 41DLR262.

Section 115 and Order 41 rule 31—

Reversal of the trial Court's findings that "Pitamber and after his death his heirs had been possessing the suit land" by the learned Sub-Judge by ignoring altogether material facts and documents. The learned Sub-Judge also held without any basis that "It is presumed that Samad Ali's tenancy right continued" though there is no evidence of possession of the plaintiff predecessors' right from the beginning of the present century upto 1963 when the plaintiffs allegedly purchased. These findings as to Samad Ali's and plaintiffs' possession cannot be legally sustained. Further, the learned. Sub-Judge without considering the finding of the trial Court that the plaintiffs failed to prove that the defendant Nos. 4-6 were the heirs of Samad Ali just in one sentence found that "the plaintiffs have sufficiently proved that their vendors are heirs of Samad Ali." Such a finding ought not to have been allowed to stand in revision when the same was raised as the first ground. Appeal allowed.

Nur Ahmed vs Nur Ahmed 40 DLR (AD) 175.

Section 115, Order IX rule 1—

Once the defendant denies service of summons upon him the whole onus shifts to the plaintiff who has to prove satisfactorily that summons was in fact duly served. Since the finding of the trial Court as to nonservice of summons cannot be said to be unreasonable and perverse, the High Court Division erred in law in setting aside that finding entering into a question of fact while exercising revisional jurisdiction.

Wazed Ali Sardar (Md) vs Md Afsaruddin Sardar and others 48 DLR (AD) 159.

Sections 115, 151 and Order IX rules 4 & 13—

When the client is victimised because of the negligent and enigmatic conduct of their agent Government pleader, prayer for interference with order of restoration of the suit obtained under the Court's inherent jurisdiction is refused for the ends of justice.

Tasir Ahmed and others vs People's Republic of Bangladesh 50 DLR 109.

Section 115, Order XXXVII—

The higher court may entertain the suit and try it or may in the alternative refuse to entertain it directing the plaintiff to present the plaint before the court of the lower jurisdiction. In the present case there is no lack of jurisdiction for the District Court to dispose of such suits through summary procedure. Therefore the plaint be returned for presenting the same before the District Court.

Ansarul Hoque vs Agrani Bank 50 DLR 263.

Section 115(1)-

The impugned order having been passed by the District Judge in a non-judicial matter in his administrative capacity, the High Court Division has no jurisdiction to interfere with the decision.

Globe Metal Jnsustries Sramik Union Multipurpose Co-operative Society Ltd vs Asharaf Ali and others 49 DLR 517.

Section 115(1) & Order XLII rule 1—

The revisional power of the High Court Division is a supervisory power which may also be exercised suo motu.

Safaruddin and others vs Fazlul Huq and others 49 DLR (AD) 151.

Code of Civil Procedure, 1908 (Section 116-153)

Code ofCivil Procedure, 1908

Section 137—

SubordinateCourt JanguageWhether the use of English language is prohibited--There is nodispute that in the Bangla Bhasha Prochalan Aine there is no obstanteexpression. The legislature is aware of the special law i.e. the Code of CivilProcedure. If the legislature would have intended that section 3(1) of the Actwould override section 13 7 of the Code then the legislature would haveprovided a nonobstante expression prohibiting the use of English language inthe subordinate civil Courts.

Hashmat ullah (Md) vs Azmiri Bibi 44 DLR 332.

Section 141—

Executingproceedings under the provision of Code of Procedure will not apply to writproceedings.

Thus even ifit is presumed that section 141, CPC applies to the writ proceedings, there isno conflict of decisions regarding the fact that the execution proceedings underthe Civil Procedure Code will not apply to the writ proceedings for executionof the judgment passed in the writ proceedings.

Neerala Tea Estate vs Government of Bangladesh 41DLR90.

Section 141—

Even ifsection 141 CPC is applied to writ proceedings, the matters concerning theexecution of decrees as provided in the CPC do not apply to writ proceedings.

It is enoughfor the purposes of this application to say that following the decision in thecase of Thakur Prasad vs Fakirulla, ILR 17 Allahabad 106 (PC) it iswell-settled that the proceedings referred to in section 141 CPC do not includeexecution proceedings under the Civil Procedure Code. Therefore, even ifsection 141 CPC is applied to the writ proceedings, the matters concerningexecution of the decrees as provided in the Civil Procedure Code do not applyto the writ proceedings.

Neerala Tea Estate vs Government of Bangladesh 41 DLR 90.

Section 141 –

In originalmatter in the nature of suit like pre-emption proceeding the principle of Res judicata can have applicationinasmuch as the order passed in such proceeding has the effect of decree.

Refazuddin Mondal vs Abdul Razzaque @ Rezaul Karim & others 43DLR 644.

Section 141—

Section 141CPC does not in terms apply to proceedings in writ. But the Court in itsdiscretion can apply the principles as distinguished from the technicalprovisions of the CPC to meet the exigencies of the situation on the ground ofjustice, equity and good conscience.

Moni Begum vs RAJUK 46 DLR (AD) 154.

Section 141—

Interrogatoryprocedure applies in pre-emption proceeding in view of the provision in section141 CPC.

Abdul Baten vs Abdul Latif Sheikh 45 DLR (AD) 26.

Section 141 & 144—

Proceedingsmentioned in section 141 refer to original cases in the nature of suits and notother cases which do not originate in themselves. Proceeding under section 144is not an original case wherein procedure in regard to suits as contained inthe CPC can be made applicable.

Ibrahim Munsi and others vs Tamizuddin Bhuyan 47 DLR 333.

Section 141 and Order IX, rule 9-

"Proceedings"in section 141 of the Code includes original matters. Miscellaneous case underOrder IX rule 9 of the Code is not a proceeding within the meaning of section141.

Almasuddin vs A Wadud Khan 42 DLR 391.

Section 141 & Order IX rule 9-

The Courtbelow committed no illegality in holding that the subsequent application underOrder IX rule 9 was not maintainable.

Alhaj Mokter Hussain Talukder vs Ainuddin Ahmed 45 DLR (AD) 37.

Section 141 & Order IX rule 13-

A defendantmay apply to the Court by which an ex parte decree was passed against him forsetting aside such decree on the ground of non-service of summons ornon-appearance for sufficient cause. In view of section I 41 of the Code, anopposite party in an original miscellaneous proceeding may exercise the sameright.

Shah Alam (Md) vs Abul Kalam and others 54 DLR 276.

Section 144—

Phrase"Varied or reversed" in section 144-This section does not provide foran order of restitution to be made in any particular form or proceeding or byany particular Court.

Atiar Rahman & others vs Mahatabuddin & others 40 DLR 496.

Sections 144 & 151—

The grantofrestitution is not discretionary with the court, but law imposes anobligation on the party who gets the benefit of a varied or reversed decree tomake restitution to the other party for his loss.

Shahana Hossain vs AKM Asaduzzaman 47 DLR (AD) 155.

Section 146 & Order IX rule 13—

A legalrepresentative of a deceased defendant is entitled to file an application underOrder IX, rule 13 to set aside an ex parte decree irrespective of the fact asto whether the deceased defendant had died before or after the ex parte decreeis passed.

Rahima Khatun vs Md Nurul Hoque & others 50 DLR 140.

Section 146 and Order IX, rule 9—

Proceedings by representatives-the appellants,claiming under the plaintiff after his death, can apply for setting aside theorder of dismissal of the suit. In that view the Subordinate Judge was wrong inholding that the appellants' case for setting aside dismissal was notmaintainable.

Hazera Khatun vs Amulya Chandra Chaklader 42 DLR426.

Section 148—

Section 148which provides for granting of time to do an act within a given time by theCourt has no application where direction to do an act is embodied in thedecree.

Abdul Hadi Bepari vs Safaruddin Mondal 38 DLR (AD) 265.

Section 148—

In a casewhere a court passes a decree for specific performance of contract the courtretains the jurisdiction to extend time even though the decree contains aclause that in default of the plaintiff to make the requisite payment withinthe period fixed the suit shall stand dismissed.

Idris Shaikh vs Jilamon Bewa and others 50 DLR (AD) 161.

Section 148—

Where anyperiod is fixed by the Court for doing any act prescribed or allowed by theCode, the Court may, in its discretion, enlarge the period even though theperiod originally fixed or granted may have expired.

Wajeda Khatun and others vs Saonatun Bewa 55 DLR 460.

Sections 148 and 149—

No conditionprecedent to an order of rejection of memo of appeal before making a final byan appellate Court is contemplated in section 149 CPC.

Disrictt Primary Education Officer vs Jaynal Abedin 40 DLR 328.

Section 148 & Order VII rule 11—

Theenlargement of time contemplated under section 148 of the Code of CivilProcedure and under section 6(2) of the Court-fees Act has no application inthe instant case where the statute fixed the period of time which a court cangive for compliance, imposing a positive bar against granting time exceeding 21days as provided under rule 11 Order VII of the Code.

Abdul Aziz vs Tafazzal Hossain & another 50 DLR 487.

Section 151—

For disposalof an appeal filed under the Local Government (Union Parishad) Ordinance, theDistrict Judge shall follow the procedure laid down in Civil Procedure Code.

Habibur Rahman Talukder vs Shaha Alam 37 DLR 71.

Section 151—

By virtue ofits inherent power the court will grant temporary injunction only when theapplicant can prove that he will suffer irreparable loss ifthe temporaryinjunction prayed for is not granted.

Prof MA Raquib vs Prof Zillur Rahman 37 DLR 83.

Section 151—

Plaintiffdies-Suit thereupon dismissed for default-Substitution prayer by the legalrepresentatives· and the fact of plaintiffs death being brought to the noticeof the court, the court cannot fix a date for hearing there being none to beheard so far as the plaintiff is concerned and court should allow the legalrepresentatives of the dead plaintiff to apply to bring themselves on record inplace of the dead plaintiff within 90 days' time as provided in Article 176 ofthe Limitation Act, Munsifs order dismissing the suit when it was called forhearing after the death of the plaintiff totally misconceived; he ought to have·set aside the dismissal acting under section 151 CPC.

Kamal Anwar vs Kabir Khan 37 DLR 193.

Section 151—

Order ofdismissal for default being an appealable order under Order XLIII, rule 1 (d),the Court cannot interfere under section 151 CPC and pass an order restoring acase to file.

Md M Hossain Mollah vs Asstt Dy Custodian 37 DLR 287.

Section 151—

A proceedingunder section 151 cannot be taken when there are other remedies available forsecuring the redress.

A Motlib Chowdhury vs Minor Bapi 38 DLR 231.

Section 151—

Where due tothe Court's or to Court's Officer's mistake an injury is caused to a party,section 151 can be invoked for rectification of the mistake.

Md Bandi Ali Khan vs The Government of Bangladesh 38 DLR 258.

Section 151-

"Ends ofjustice"-This expression 'ends of justice' used in section 151 of the Codeof Civil Procedure recognises wide powers inherently possessed by the Court todo justice in a given case. From this, it must not be supposed that the Courtcan, in disregard of the established principles and norms of law, make anorder.

Bangladesh Shilpa Bank vs Bangladesh Hotels 38 DLR (AD) 70.

Section 151-

Plaintiffscase dismissed for non-compliance with Court's order in not depositing the costto the defendants in time and the plaintiff files an application under section151 CPC for setting aside the said order after depositing the cost-

Held : Casecan be restored by invoking section 151 CPC. Rafiqul Islam vs Abul Kalam 42 DLR19.

Section151-Application moved under Order IX, rule 9 with a prayer for condoning thedelay under section 151 in its filing-the court has the inherent power to grantit for ends of justice.

Karamat Ali vs Ramizuddin Ahmed 39 DLR 336.

Section 151—

Inherentpower under section 151 cannot be invoked where specific provision has beenprovided in the law that is, Order IX, rule 13-Where inadvertently the court bymistake passes an order to the prejudice of a party, relief can be had undersection 151. The inherent power of the court cannot over-ride the expressprovisions of the law-Code is exhaustive in respect of matters for which theCode expressly provides.-If a party's case is dismissed for its non-appearance,he cannot base his case on the grounds provided in the Code for setting asidethe ex parte decree-inherent power under section 151, cannot in such case beinvoked.

Mayajan Bibi vs Monohar Ali 39 DLR 68.

Section 151—

In the mainsuit, out of which the Civil Revision case arose, the deceased OP No. I's namewas deleted and her heirs added as party but in the application under Section115 CPC they were not made party due to bona fide mistake.

Held: Tosecure ends of justice the High Court can under section 151 CPC add the heirsof the deceased OP No. 1 in civil revision by deleting her name.

Dr Mohammad Golam Kibria vs Nurun Nahar Begum 41DLR143.

Section 151—

Court is notto exercise power under section 151 CPC unless it is satisfied that it aims atsecuring ends of justice.

Atiar Rahman & others vs Mahatabuddin & others 40 DLR 496.

Section 151—

Impugnedorder or stay being non-speaking was passed arbitrarily.

Unfortunately,the impugned order of stay being non speaking it is impossible to gather ifSubordinate Judge applied judicial mind to materials placed before him and wassatisfied that in the circumstances of the case stay of order needs to bepassed to secure ends of justice and to prevent abuse of process of court. So,there is no escape from the finding that inherent power under section 151, CPCwas exercised by the Subordinate Judge, not on sound judicial principle ratherit was exercised arbitrarily.

Havingregard to the facts and circumstance of the case it cannot be said that thestay order was passed by the Subordinate Judge to secure the ends of justice orto prevent abuses of process of court. Rather impugned order aims at denyingjustice to petitioners.

Atiar Rahman & others vs Mahatabuddin & others 40 DLR 496.

Section 151—

Wilfulconcealment of a material fact on the part of the petitioners which tantamountsto practising fraud upon court is sufficient ground to invoke the provision ofsection 151 of the Code to set at naught the ex parte decree, even though thereis alternative remedy provided in the Code for setting aside ex parte decreeunder Order IX, rule 13 CPC.

Mozaffar Ahmed vs M Saleh Ahmed 40 DLR 239.

Section 151—

Exercise ofdiscretionConflicting claims of the parties in the writ petition. High CourtDivision which had granted the order of stay earlier vacated it on beingsatisfied that it should be vacated ... High Court Division has not made anyarbitrary exercise of power in vacating the order of stay.

Charandwip BKSS vs Deputy Commissioner Cox's Bazar 40 DLR (AD)213.

Section 151—

Analogoushearing-Where parties in two suits are the same and the subjectmatter thereinare the same it is always convenient to get the suits heard by the same Courtbefore which they are pending in order to avoid. conflicting judgment.

Nurul Islam & others vs Noor Mohammad 44 DLR 29.

Section 151—

In cases offraud upon the Court, it may exercise inherent powers to set things right eventhough there are alternative remedies open.

Shahr Banoo Mohsin Asgar and another vs Lailun Nahar Ershad andothers 44 DLR 552.

Section 151—

Fraudvitiates the entire proceedings. It is the duty of the court to bury the suitthe moment fraud comes to its notice.

KM Sarwar Hossain vs Mosharraf Hossain and others 45 DLR 562.

Section 151—

Locus standito invoke Admiralty jurisdiction-Only the owner or consignee or assignee of thebill of lading of any goods may claim damages against the owner, master or crewof the ship. The plaintiff insurer having satisfied neither of thesedescriptions they have no locus standi to invoke the jurisdiction of theAdmiralty Court.

Sadharan Bima Corporation vs Bangladesh Shipping Corporation 43DLR 322.

Section 151—

Where amistake of a Court or Court's officer causes some injustice to a particularparty, the power under section 151 of the Code can be exercised for the purposeof giving necessary relief even though there is an alternative remedy for doingthe same.

Boynuddin vs Azimuddin 43 DLR 207.

Section 151—

Warrant toarrest the defendant - As the suit is for determination of right to immovableproperty, the Subordinate Judge had no jurisdiction to pass the order of arrestof the defendant nor such an order could be passed in exercise of the Court'sinherent jurisdiction.

Mosharraf Hossain Mia vs Mst. Hasina Begum 43 DLR 254.

Section 151—

The inherentpower of the Subordinate Judge cannot extend to interference with the order oftemporary injunction passed by the Appellate Court. The Subordinate Judge hasno jurisdiction to change or sit on the order passed by the District Judge inexercise of the inherent power under section 151 of the Code.

Repco Laboratories Ltd vs NuruddinAhmed 43 DLR 123.

Section 151—

lnherentpower-Where the Court itself passed a wrong order the Court is competent torectify such order in exercise of its inherent power.

Atash Ali vs Rebati Mohan Sarker 43 DLR 539.

Section 151—

An orderpassed by an inferior court during the subsistence of a stay order made by asuperior Court is a nullity.

BTTB vs Lithi Enterprise 46 DLR 122.

Section 151—

Order havingbeen passed in the absence of the plaintiff and the trial Court having notrejected the plaintiff's plea that the case records remained untraced for sometime, restoration of the suit in exercise of inherent power was notunjustified.

Shahabuddin vs Abu Sayed 45 DLR (AD) 22.

Section 151—

An ordermade under this section is not open to appeal, though it is revisable by theHigh Court Division under certain circumstances.

Yusuf vs Moftal Ahmed Sowdagar 45 DLR (AD) 178.

Section 151—

Maintainabilityof application under section 151 CPC for setting aside an order cancelling anearlier order dismissing a Miscellaneous Case under Order IX rule 13. Theeffect of an order of dismissal of the Miscellaneous case for default is one ofrejecting an application to set aside a decree passed ex parte. It is not anorder passed on merit, but ex parte. The view taken by the High Court Divisionthat appeal lies in both cases is correct. This is not to say that theapplication under section 151 CPC is barred under all circumstances. Since theapplication under section 151 in the present case was filed 7 days afterdismissal of the miscellaneous case for default without any explanation fortfie delay, such application could not be justified.

Abdul Kader Chowdhury vs Nurul Islam 43 DLR (AD) 128.

Section 151—

There isnothing restricting the Court's power to apply a provision of the CPC in a writcase when the court thinks it necessary to do so to prevent injustice.

Raufique (Md) Hossain vs Speaker, Bangladesh Parliament and others361.

Section 151—

Section 151CPC undoubtedly lengthens the hands of the court to pass any order to dojustice when there is no other remedy open to the really aggrieved litigant.

Abu Sama vs Abu Syed and others 48 DLR 141.

Section 151—

Order ofinjunction passed in exercise of inherent jurisdiction against prosecution ofexecution case to do ex debito justitiae. not to be interfered.

Sarada Bala Sen vs Sheikh (Md) and others 48 DLR 239.

Section 151—

Only for theends of justice the discretion under this section cannot be exercised, but whenthere is mistake of the court itself, it can be.

Abdul Quddus vs Mobarak Hossain 48 DLR 572.

Section 151—

ln anappropriate case even if an application for injunction does not come within theambit of Order XXXIX rules 1 and 2, the court in the interest of justice caninvoke inherent jurisdiction and grant an injunction under section 151 of theCode.

Sarhind Garments Ltd vs Glory Truth Industries Ltd and another 49DLR 260.

Section 151-

Where analternative remedy is open to vindicate grievance before criminal court orcivil court the inherent jurisdiction of the High Court Division cannot beinvoked on the plea of "ends of justice".

Ferdousy Begum (Doti) vs Maheia Khatoon and others 49 DLR 313.

Section 151-

When thesuit has been finally disposed of, with the signing and sealing of the finaldecree, there cannot be any petition under section 151 of the Code and thedecree cannot be interfered with.

Sabirannessa and others vs.Kabir Ahmed and others 49 DLR 347

Section 151-

Even afterthe passing of the decree, the court can entertain an application under section151 of the Code in an appropriate case where fraud was practised upon the courtand in such case the question of becoming functus officio after thepronouncement of judgment and signing a decree does not arise.

Abdus Sattar Khondker and others vs Premlata 49 DLR 583.

Section 151-

Availabilityof an alternative remedy under other provisions of the Code does not alwaysstand in the way of exercise of the inherent power of the Court for doing evenhandedjustice for which alone the Court exists.

Abdul Mannan Sikder vs Matilal Dhupi and others 50 DLR 403.

Section 151-

The AdalatAin is a special legislation setting up Special Courts for prompt realisationof loans by financial institutions. Such a Court is a civil Court only forlimited purposes. A revisional application under section 151 of the Codeagainst any interlocutory order passed by an Artha Rin Adalat is notmaintainable in law.

Belayet Hossain vs Bank Indosuez 50 DLR 431.

Section 151-

A discretionhaving been exercised for restoration of the suit dismissed for default, theHigh Court Division committed no illegality in affirming the order passed bythe trial court in exercise of power under section 151 of the Code.

Abdul Quddus vs Md Mobarak Hossain 51 DLR (AD) 54.

Section 151-

A Courtcannot remain silent about the sufferings of a party for no fault of its own bynot resorting to the exercise of the inherent power under section 151 of theCode.

Mizanur Rahman Khan (Md) and another vs Jinnatul Ferdous andothers 51DLR493.

Section 151-

When asubordinate Court invokes its inherent jurisdiction for reasons recorded togrant a chance of hearing to a party for ends of justice by recalling its ownorder and such order being not in excess of its jurisdiction, this Court willbe reluctant to interfere with such order.

Osman Ali (Md) vs Md Makbul Hossain and others 52 DLR 109.

Section 151-

After adecree has been executed and fully satisfied there remains nothing more for theExecution Court to do.

Harun-orRashid and others vs Quyum Khan and others 52 DLR 150.

Section 151-

High CourtRules, Chap XThe ground as to Court's failure to record satisfaction about thereason for absence of the Advocate when the case was called for hearing is too technicalto deny the absentee opposite parties rehearing ofthe civil revision.

Hasan Azam and others vs Rabeya Khatun andothers 53 DLR (AD) 87.

Section 151-

Ifan order is obtained through misrepresentation and fraud upon the court , inthe exercise of its inherent power this court can set things right, even suomotu, if it comes to the notice of the court.

Abul Kashemvs Executive Engineer & others 53 DLR 186.

Section 151-

Theorder passed by the court, was a wrong one but for that matter the same courtcannot sit over its own judgment in the facts of the present case.

KhorshedAlam (Md) vs Subordinate Judge & Artha Rin Adalat and others 54 DLR 239.

Section 151-

Byinherent power of the court and on revision the order was set aside by the HighCourt Division and the Appellate Division upheld the decision holding that suchinherent power cannot be exercised while acting under specific provision of theAct governing the disposal of the case.

Pubali BankLtd vs Mazid and Co and others 54 DLR 340

Section 151-

Althoughno revisional application was filed before this court against an order that wasnot appealable or an order passed on an application under section 151,following the principle of substantial justice this court can interfere andcorrect the error committed by the subordinate judge.

Makbul Ahmedand others vs Mohammedullah and others 54 DLR 399.

Section 151-

ASubordinate Judge has got no jurisdiction to invoke any power under section 151of the Code in the proceedings of a title suit either to grant stay orinjunction in respect of a family suit of a Family Court.

Shafiqul Huq(Md) vs Mina Begum 54 DLR 481.

Section 151-

Whenan order is passed by a Court on being misled or due to its own mistake suchissues cannot be raised or decided in appeal or review. A Court of law isobliged to correct the mistake when true facts are brought before it and makesuch order as necessary for ends of justice. The Court must not allow itsprocess to be abused by any unscrupulous person.

MA Kabir Chowdhuryvs MM Rahman Miah 54 DLR 485.

Section 151-

Anyorder passed by a Tribunal on fraudulent misapprehension or undue influence hasno legal effect and the Court or Tribunal does not become functus officio withthe passing of the order so as to recall it.

Governmentof Bangladesh and another vs MA Khair Bhuiyan 55 DLR (AD) 76.

Section 151-

Whenan application under Order IX rule 9 of the Code is dismissed for default, itis an appealable order but when the case is dismissed not for a default but fornon-payment of cost, then the order can be set aside by invoking section 151 ofthe Code on acceptance of the costs subsequently.

WajedaKhatun and others vs Saonatun Bewa 55 DLR 460.

Section 151-

Inan appropriate case the Court may, in exercise of its inherent jurisdiction,reject the plaint of a suit if the suit is not maintainable.

Principal,Barguna Darul Ulum Nesaria Alia Madrasha vs Secretary, Ministry of Health &ors 55 DLR 542.

Sections 151& IO-

AnalogousTrial- The principle of consolidation of suits for trial implies thatsimilarity or identity of the matter in issue in different suits by the sameparty should be decided by the court once and for all. The object ofconsolidation is to avoid multiplicity of litigations between the same partieswhenever the matter in issue is substantially or directly the same. Theprinciple of consolidation in no way conflicts with the purpose of section 10CPC, on the contrary it preserves and promotes it.

Rezaul Karimvs Jahanara Begum 44 DLR 508.

Section 151& 115-

Re-openingof a Revision matter-There is no provision in the Code for rehearing ofRevision case and reviewing of judgment once delivered by the High CourtDivision on merits. The Court cannot set aside its own order passed on meritsunless the Court has jurisdiction to do so. The kind of order sought for may bepassed if it is necessary for the ends of justice so long as the High CourtDivision is seized of the matter, but not when its jurisdiction and power haveceased after the disposal of the matter on merit.

BuddhiSankar Biswas vs Akbar Ali Sheikh 44 DLR 242.

Sections 151& 153-

Section151 of the Code of Civil Procedure providing inherent power of the Court readwith section 153 provides general power to amend any defect or error in anyproceeding of the suit and for determining the real question or issue raised.

Universityof Dhaka represented by its Vice Chancellor vs Associated Engineering andDrillers 56 DLR (AD) 103

Section 151and Order VII rule 11-

Rejectionof plaint-the suit was filed with positive averments regarding the cause ofaction which was in existence at the time of filing the suit and the plaintsuffered from no laches or defects and it could not be said that the cause ofaction which was there at the time of filing the suit ceased to exist due tothe circular issued by the Bangladesh Bank as it had created no embargo for thesuit. There being no inherent defect on the face of the record rejection ofplaint by invoking court's inherent power was also not called for.

MM JuteExporter vs Pubali Bank 42 DLR 500.

Section 151& Order VII rule II-

Theplea of implied bar should ordinarily be decided on evidence unless the factsdisclosed in the plaint clearly prove that the suit was not maintainable. Aresort to section 151 of the Code may be made in an exceptional case.

Guiness Peat(Trading) Ltd vs Fazlur Rahman 44 DLR (AD) 242.

Section 151& Order VII rule II-

Althoughrejection of the plaint was prayed for, the plaint is returned to the filingadvocate in exercise of inherent power as the Admiralty Court lacksjurisdiction and the plaint cannot be rejected by such a court, the provisionfor rejection of plaint having not been made applicable under the rule of theAdmiralty Court.

MadinaVegetable and Oil Refinery Industries (Private) Limited vs MT Dolores. 45 DLR740.

Section 151and Order IX, rule 13-

Exparte decree-Assistant Judge set aside the ex parte decree not upon groundsavailable under Order IX, rule 13 CPC but by taking resort to the inherentpower of the Court under section 151 CPC-He cannot draw upon inherent powerwhile acting under a specific provision of the Act governing the disposal ofthe case. Even though the learned Assistant Judge has not come to any definitefinding as to the service of summons upon the appellant and having regard toall the facts noticed and observation made, there is no necessity for furtherdetermination of the question of the service of summons upon the appellantTheorder of the learned Assistant Judge has rightly been set aside by the HighCourt Division-Appeal dismissed.

Reazul HoqueMolla vs Ajizullah Mollah 42 DLR (AD) 74.

Section 151,Order IX rule 13 & Order XLIII, rule (d)-

Ifan application under Order IX rule 13 is dismissed for non-appearance of thepetitioner this becomes an appealable order but when the dismissal is for themistake done by the court's official the trial Court may by invoking the powerunder section 151 restore the case to its file and number to do completejustice and thereby to save the parties from further litigation and in such acase the question of limitation is immaterial.

Gazi TayeburRahman vs Saikh Md Ali and others 55 DLR 29.

Section 151&. Order XIV Rule 2-

Theplaintiff may take recourse to section 151 for rejection of the set-off,alternatively he may bring the maintainability of the set-off as an issue oflawto be decided first.

Sultana JuteMills Ltd vs Agrani Bank 46 DLR (AD) 174.

Section 151& Order XXI rule 26-

Thepetitioner being a third party to the decree has no locus standi to maintain anapplication for stay of the execution proceeding and then the facts do notwarrant exercise of discretionary power of the court to make an order of stay.

Thepetitioner thereafter made no effort to get the revisional application heard.He filed a fresh petition before the executing court and renewed his prayer forstay -of the execution proceeding. By the impugned order dated 15-5-90 theexecuting court rejected the said application on the view that it was no longeropen to the petitioner to maintain a fresh application for stay on the selfsamefacts.

Aftab Ahmedvs Moinuddin Zaigirdar 46 DLR 173.

Section 151& Order XXI rules 35, 36, 97- 100-

Decreefor ejectment-Third Party's locus standi-No inquiry into the title or possessionof a third party is contemplated at his instance under rules 35, 36, 95 or 96of Order XXI when decreeholder or auction-purchaser applies for possession.When the decree-holder is met with obstruction in obtaining possession anoption open to him is to apply under rule 97.

Anenquiry at the instance of a third party in possession is contemplated onlyunder Order XXI rule 100 after he was dispossessed and not before. There beinga remedy open to the third party by way of. a separate suit, there was no roomfor exercise of the inherent power for adjudication of his claim of title orpossession over the disputed property.

Haroon vsSufia Khatun 44 DLR 63.

Section 151& Order XXIX rules 1, 2-

Alicence which is by nature revocable cannot be specifically enforced and in acase relating to a contract which cannot be specifically enforced no injunctioncould be allowed.

Ministry ofCommunication, Railway Division, People's Republic of Bangladesh and others vsMd Ferozur Rahman & others 45 DLR 762.

Section 151,Order XXXIX rule 1-

Thoughthe appeal of the writ-petitioner was dismissed but the ad-interim order ofinjunction passed during the pendency of the appeal was a valid order requiredto be complied with-Writ-respondent not having complied with the same, the writpetitionerwas entitled to restoration as ordered.

Governmentof the People's Republic of Bangladesh and another vs Md Shamsul Haque and anr56 DLR (AD) 101.

Section 151& Order XLI rule 19-

Inherentpower of the court cannot be invoked to enable the court to break through clearprovision of the Limitation Act.

Sufia Khatunand others vs Abdul Majid and others 45 DLR 584.

Section 151and Order IX, rules 6, 7 and 13 –

Whenthe ex parte hearing is completed, the defendant has no right of hearing.Earlier application under Order IX, rule 7 CPC cannot be entertained undersection 151 CPC. The court's finding on the ilIness of appellant did notoperate as res judicata and the trial Court was directed to consider theappellant's application under Order IX, rule 13.

KDHLaboratories Ltd vs Pubali Bank 40 DLR 1.

Section 151and Order 9, rule 13-

Reazul HoqueMolla vs Afzullah Mollah 42 DLR (AD) 74.

Section 151and Order XXXIX, rule 1-

Anelection tribunal is a Civil Court so far as it relates to trial of electionpetition. But it has no jurisdiction to grant ad-interim or temporaryinjunction restraining the elected chairman from taking oath or assuming officeas temporary injunction does not relate to trial of election petition.

Md ShahidulIslam vs Election Tribunal 40 DLR 500.

Section 151and Order XLI, rule 19-

Courtof the district Judge whether a Family Court under section 17(1) of theOrdinance an appeal shall lie from a judgment, decree or order of Family Courtto "the Court of the District Judge". The latter being a Civil Court,provisions of the Code of Civil Procedure would apply to the proceeding beforeit. There is no scope for thinking that the District Judge referred to in theOrdinance is a persona designata or a Family Court and that provisions of OrderXLI rule 19 were not applicable to proceeding arising out of Family Courtjudgment.

Md Moinuddinvs Amin Khan Majlish 42 DLR 483.

Section 151& Order VII rule 11-

Apartfrom the question of Order VII, rule 11 of the Code the Court can also exerciseits inherent power in order to stop harassing the other party again. Since thedecree passed by the trial Court in the earlier suit had already merged intothe decree of the Appellate Division such a decree cannot be challenged beforethe trial Court.

Islami BankBangladesh Ltd and others vs Abdul Jalii and others 53 DLR 29.

Section 151& Order XXI rules 100, 101 & 103-

Inquirycontemplated under rule 100 is restricted to the question of possession onlyand even though the applicant may not have good title to the property, if hecan show that he was not in possession on behalf of the judgment debtor but onhis own account, he must be put in possession under rule 101 CPC.

Sultan Mia(Md) vs Hazi Md Yusuf 53 DLR 555.

Section 151& Order XXI rules 100 & 101-

Inthis case question of exercise of power under section 151 does not arise as theopposite party made the application under rule 101 of Order XXL.

Sultan Mia(Md) vs Hazi Md Yusuf 53 DLR 555.

Section 151& Order XXIl, rule 3-

Wheremistake has been committed by the Court by dismissing the suit for default itcould rectify the mistake and at least could pass an order of abatement of thesuit for non-substitution within time instead of passing the order of dismissalfor default, in the facts of the case.

Afitan Nessaand others vs Government of the People's Republic of Bangladesh and ors 53 DLR502.

Section 151Order XXXIX rules 1 & 2-

Mandatoryinjunction can only be passed by a Court in the exercise of its inherentjurisdiction. Provisions of Order XX.XIX rules 1 or 2 of the Code do notempower a Court to make such order.

FulbariaAdarsha Market Dokandar Malik Samity vs Fulbaria Adarsha Market KhatigrashtaDokandar Kallyan Samabaya Samity & others 53 DLR 220.

Section 151& Order VII rule II –

Sinceit is found that amount claimed by the plaintiff is not loan (i.e) within themeaning of section 2(Kha) of the Act in spite of the fact that plaintiff is afinancial institution within the meaning of secion 2(Kha) of the said Act.Artha Rin Adalat has no jurisdiction to entertain and dispose of such a suitand, as such, Court below acted illegally in passing the impugned orderrefusing to reject the plaint. But the suit as filed before Artha Rin Adalat istriable by a civil Court having jurisdiction in the matter. In suchcircumstances Artha Rin Adalat ought to have returned the plaint to theplaintiff for presentation before the proper Court.

Eastern BankLtd. vs Subordinate Judge and another 49 DLR 531.

Section 151& Order IX rule 13-

Remediesagainst an ex parte decree under the Act is either by an application or by anappeal and the requirement in both the cases being deposit of 50% of thedecretal amount-There is no shortcut by invoking section 151 even on ground offraud.

Nur Islam(Md) vs Agrani Bank 49 DLR (AD) 135.

Section 151and Order XXIII rule 1 and Order XLVII rule I-

Applicationthough filed under section 151 CPC is sent back to the District judge forreconsideration of the merits thereof and permitting the plaintiff to sueafresh.

Misir Ullah(Md) vs Syed Khalilullah Malek and others 48 DLR 117.

Section 151,Order XXXIX rule 1-

Governmentof the People's Republic of Bangladesh and another vs Md Shamsul Haque and anr46 DLR (AD) 101.

Section 151& Order XXXIX rules 1&2-

TheCourt, in an appropriate case, in exercise of its inherent power, require theoffending party, by issuing a temporary injunction in mandatory form, torestore the status quo ante.

Babul KantiDas and others vs Abul Hashem and others 47 DLR (AD) 6.

Section 151& Order XLI rules 23 & 25-

Ifa case does not come under Order XLI rule 23 or rule 25 but the court thinksthat the case should be remanded for ends of justice, it can remand it in theexercise of its inherent power in the absence of any provisions in the Code.

Abdul Azizand others vs Sahajuddin Mollah and others 48 DLR 164.

Section 151& Order LXI rule 23-

Itbaffles understanding how the Judges of the High Court Division could justifythe ends of justice in passing the order of remand in the face of the glaringlaches and conscious machination of the defendant to procrastinate thelitigation.

Khairunnessabeing dead her heirs Feroz Alam and others vs Zobaida Nahar @ Zharna &others 49 DLR (AD) 77.

Section 152-

Anymistake in drawing up preliminary decree-whereby a property which as thejudgment makes clear, was excluded from the category of suit land can becorrected under section 152 even though the preliminary decree was allowed tostand.

Ismailullahvs Sukumar Chandra Das 38 DLR (AD) 125.

Section 152-

Courtby taking resort to section 152 CPC can amend decree to conform to the judgmentat any time axnd there is no time limit to such amendment.

Ismailullahvs Sukumar Chandra Das 38 DLR (AD) 125.

Section 152-

Thedecree may be amended if it is not in conformity with the judgment.

Wehold that the trial Court committed illegality and wrong in not exercising thejurisdiction vested in it under section 152 of the Code of Civil Procedure andcorrect the mistake which occurred due to accidental slip or omission and weare inclined to make the Rule absolute.

IDLC vs RezaBiscuit & Bread Co Ltd 46 DLR 199.

Section 152-

Thescope and purpose of this section are very limited. The decision on asuccessful application under this section cannot materially affect the decree.

Bangladeshvs Luxmi Bibi 46 DLR (AD) 158.

Section 152-

Byfiling an application for correction the statutory period for filing an appealagainst the decree cannot be got extended.

Bangladeshvs Luxmi Bibi 46 DLR (AD) 158.

Section 152-

Provisionof section 152 is like the provision of section 151 CPC. It is a legislativerecognition of the court's inherent power to correct its own fault.

SiddiqurRahman (Md) and others vs Profalla Bala Devi & others 50 DLR (AD) 213.

Section 152-

Section152 of the Code contemplates amendment of decree in respect of any clerical orarithmetical mistake, it does not contemplate amendment of a substantialnature.

Abdul Motaleband others vs Shahed Ali and others 47 DLR (AD) 9.

Section 152-

Therebeing no question of limitation under section 152 of the Code of CivilProcedure, the application for correction of the mistake in the schedule of theplaint and the resulting mistake in the decree may be allowed.

Chand Miaand others vs MA Rajput Ghosh Bahadur and others 56 DLR 221.

Section 152,Order XX rule 3 & Order XLVII rule 1-

Thejudgment which has been orally dictated in the Court can be completely changedbefore it is signed and sealed provided notice is given to all partiesconcerned and they are heard.

Abdur Rashidvs Santi Bhusan Deb and others 55 DLR (AD) 86.

Section 153—

Thefact that a dead man had been made party by mistake does not deprive the courtof the power to implead his legal representatives under section 153 CPC.

Hakim Ullahvs. Mutaleh and others 49 DLR 118.

Section 153& Order XLI rule 19-

TheDistrict Judge is permitted to invoke his authority of general power ofamending any defect or error in any proceeding which arose out of a suit.

Abdur Rahmanand others vs Md Shamsul Huq and others 53 DLR 364.

Code of Civil Procedure, 1908 (Section 36-103)

Section 36—

If a judgment is passed on admission then no decree need be drawn up and the plaintiff may enforce payment of the amount in pursuance of the judgment.

Messrs Kadam Rasul Silicate Works vs Sonali Bank 37 DLR 2 I 5.

Sections 38 and 39—

Sections 38 and 39 of the Code of Civil Procedure have no manner of application with regard to the function of receiving or entertaining the certified copy of a decree passed by a Superior Court of the United Kingdom for executing the same in Bangladesh.

Sonali Bank vs Abidur Rahman 42 DLR 311.

Section 44A(1)—

The "District Court" mentioned in section 44A(1) of the Code means only the Court of the District Judge. In other words, the certified copy of decree under section 44A(1) of the Code must be filed in the court of the "District Judge".

Sonali Bank vs Abidur Rahman 42 DLR 311.

Section 44A(i)—

The decree of the High Court in England is enforceable in a District Court in Bangladesh as if it had been passed by such District Court, but an arbitration award, even if enforceable as a decree or judgment, has -been excluded from the meaning of the term "decree" and not executable as such.

British Airways PLC vs Bangladesh AIR Services Pvt Ltd 48 DLR 2 49.

Section 47—

Rabindra Narayan Gope vs Nani Gopal Gope 43 DLR 540.

Sections 47 and 151—

Therefore an application under section 151 CPC against an order of dismissal for default cannot be thrown out.

In these circumstances his application under section 151 of the Civil Procedure Code against the order of dismissal for default cannot be thrown out in limine as not maintainable and should have been considered on merits." Reliance may also be placed in the case of Anindya vs Suraj AIR 1963 P 59 wherein it has been held that application dismissed for default may be restored under section 151 of the Civil Procedure Code.

Sonaban Bibi vs Abu Miah 38 DLR 432.

Sections 47, 151 and Order IX—

Provision of Order IX, CPC not attracted in case of an application made under section 47 against an order of dismissal for default-Section 151 only would be attracted for remedy against dismissal order.

Sonaban Bibi vs Abu M iah 38 DLR 432.

Section 48—

An application for execution has to satisfy first Article 182 of the Limitation Act being the earliest period prescribed and then also section 48 CPC which prescribed the maximum period of limitation. If the execution petition is hit by any of the two provisions it is to fail. ADC (Revenue).

Pabna vs Md Abdul Halim Mia 48 DLR (AD) 141.

Section 48—

An execution to be validly proceeded with must satisfy that the application last in point of time for execution was not made after the expiration of 12 years and also not beyond three years from the date of decree or order, or appellate decree or order.

Shafiqur Rahman vs Bangladesh Jatiya Samabaya Bank 53DLR 78.

Section 48 & OrderXXI rule 2-

Under the Code of Civil Procedure the decree-holder and the judgment debtor can enter into any agreement for adjustment of a decree without the sanction of the court. In order to enable the executing court to execute the decree as adjusted the only requirement is that the adjustment should be certified under Order XXI rule 2 of the Code. The decree holder can certify such adjustment at any time as there is no limitation with regard to his certification.

Bangladesh House Building Finance Corporation vs Md Abdul Hoque 55 DLR 270.

Section 51(a) & Order XXI rule 11(2)(j)(i)-

Decree for delivery of possession of an immovable property must specify the property to facilitate execution. The executing Court can neither go beyond nor behind the decree to supply the specification which is not there in the decree itself, because that would amount to usurping the jurisdiction of the trial Court.

Sahera Khatun and others vs Abdul Gaffar @Abdul Gafar and others 55 DLR (AD) 79.

Section 56—

Hazera Begum vs Artha Rin Ada/at and another 54 DLR 78.

Section 60 and Order XXI Rule 64-

Convenience and/or inconvenience of the judgment-debtor does not deserve any consideration in the attachment of his property to satisfy the decree.

Asmatunnessa Khatun vs Bangladesh 56 DLR 612.

Section 64 and Order XXI, rule 64- -

Canons of Professional Conduct and Etiquette

"( 1) An Advocate shall not acquire an interest adverse to a client in the property or interest involved in the case."

Held: A client does not always have a proprietary interest in the suit properly. He may have possessory interest.

Further Held: On a discussion of the evidence on record that the appellant's various defenses have fallen into pieces. Reprimand is the mildest punishment that can be meted out to an Advocate found guilty of professional or other misconduct, Suspension from practice is a sentence of a higher degree but it really belongs to the intermediate class of punishment. Removal from practice is the ultimate punishment that can be meted out to a delinquent Advocate.

No reason is visible why the intermediate punishment should now be relegated to the softest one. From the moment he received the legal notice from the bank upto the present moment his (the appellant's) attitude is one of defiance, contest and challenge. He has no regrets, no remorse, no repentance either. He has chalked out a path of destructive self-justification. He must pay for his defiance. No extenuating circumstances whatsoever to reduce the sentence is noticed. Appeal is therefore dismissed.

HR Talukder vs DM Pubali Bank 40 DLR 170.

Section 64 & Order XXI rule 54-

Where no evidence of prohibitory orders under Order XXI, rule 54 and its proclamation is given in the mode prescribed therein, an alienation by the judgment debtor cannot be impeached under section 64 of the Code of Civil Procedure.

Badiul Alam being dead his heir Fazlul Karim vs Md Nurullslam 55 DLR 517.

Section 66-

The object of both the sections is to put a stop to benami purchases in auction sale. Both the sections have provided that no suit shall be maintainable against a certified purchaser.

Angada Chandra Roy vs Amrendra Nath Mondal and others 48 DLR 595.

Section 66—

All cases of purchase made in a court's auction on behalf of or on account of the plaintiff fall within the mischief of this section.

Abdul Gani Howlader (Md) and another vs Abdus Somed Howlader and others 51DLR522

Sections 75, 77 Order XXVI rule 5—

Letter of request to our High Commissioner in Delhi would be the most convenient and effective mode to record the deposition of the plaintiff in Delhi, who will not encounter the difficulties that a Commissioner may face with.

Abdul Latif vs Jahanara Begum and others 55 DLR 611.

Section 79 and Order XXVII—

The Government of Bangladesh is the proper person to institute suits in respect of such properties in accordance with the provisions of section 79 and Order XXVII of the Code of Civil Procedure. With the repeal of Ordinance 1 of 1969 the office of the Deputy Custodian or Assistant Custodians of Enemy Property which was a creature of the Defence of Pakistan Rules stood abolished. Plaintiff figuring himself as Asstt Custodian sought declaration that ex parte decree of 24 Dec 1961 was fraudulent and claimed that subject-matter of that suit vested in Deputy Custodian of Enemy Property. But the suit not having been instituted by the Government it does not lie.

Subitri Barai vs Asstt Custodian 39 DLR 172.

Section 80-

Suit against government without notice-Absence of service of notice cannot be a ground for dismissal of the suit.

Khorshed Ahmed Chowdhury vs Bangladesh 43 DLR264.

Section 82-

Section 82 CPC is not applicable to the enforcement of a judgment and order passed in a writ proceeding.

Coming now to section 82 of the Civil Procedure Code it is noticed that both the clauses of section 82 of the Civil Procedure Code are in aid of an execution of a decree and as such do not apply for enforcing the judgment and order passed by this Court in a writ proceeding. Section 82 of the Civil Procedure Code is, therefore, not applicable to the present case.

Neerala Tea Estate vs Bangladesh 41DLR90.

Section 88-

The dispute as regards the chairmanship of the company cannot be a bar either on the part of the BTRC to decide the question of giving the frequency and the licence required to broadcast its programme and on the part of the other concerned respondents giving back the seized machineries/equipment to the company. There is thus no application of section 88 of the Code of Civil Procedure in the facts and the circumstances of these cases.

Ekushey Television Ltd and another vs Bangladesh and others 56 DLR 91.

Section 91(1)-

In case of public nuisance if a member of the public wants to initiate a civil proceeding it is incumbent upon him to obtain sanction under section 91(1) CPC in the absence of any special damage to him. In the case of a private nuisance no special damage is required to be proved. It is enough if the plaintiff can prove that by the unlawful user of the land/building by the defendant some annoyance or discomfort has been caused to him.

Wahid Mia vs Dr Rafiqul Islam and others 49 DLR 302.

Section 92-

The suit filed is not for a breach of trust against a trustee, rather it is a suit filed by a trustee against a person who claims to be a trustee or, so to say, Trustee vs Trustee. In such a situation the provision of section 92 will not be attracted.

Abul Masud Khan vs Khan Mohammad Abdullah Rahmatullah 47 DLR 143.

Section 92-

This section is meant for trust properties which is governed by Trust Act and not applicable to charitable societies registered under the Societies Registration Act.

BRAC and others vs Professor Mozajfar Ahmed and others 54 DLR (AD) 36.

Section 94-

Mosharraf Hossain Mia vs Mst. Hasina Begum 43 DLR 254.

Section 94 and Order XXXIX Rule 1-

An order of injunction is not called for in election petition either under section 94 or under Order XXXIX, rule 1 of the Code of Civil Procedure.

It may be pointed out that rule 45 of the Ordinance, 1983 specifically sets out the remedy in election petition, both remedies are declaratory. An order of injunction under Order XXXIX, rule 1 of CPC is not necessary for achieving the reliefs conceived under rule 45. Again, an order of injunction is not necessary for preservation of the subject-matter of the election petition. Therefore, an order of injunction is not called for in an election petition either under Order XX.XIX, rule 1 CPC or section 94 of the said Code. For these reasons it is fortified by the decision reported in 27 DLR 388.

Mahmud Hussain vs Sayed Ali 41 DLR44.

Section 94 & Order XXXIX rule 2(3)—

When a violation case under Order :XXXIX rule 2(3) of the Code is pending before a court, no application under section 94 of the Code lies seeking direction upon the same offender for furnishing security for their appearance in default to commit them in civil prison.

M Abul Quashem and ors vs Moulvi Abdur Rab Miah and others 55 DLR 32.

Section 96—

Any person being aggrieved by decree competent to file an appeal against that Section 96 CPC does not prescribe that it is only that person against whom a decree has been passed or against whom a relief has been granted, who can come in appeal. Any person who can show that he is aggrieved by the decree, can file an appeal against the same. For determining as to who is an aggrieved person, one has to look to all the circumstance of the case and the substance of the decree passed.

"A defendant has the right of appeal notwithstanding that the suit has been dismissed as against him, if he is aggrieved by the decree".

Md Sudeque Ali Munshi vs Abdul Rashid Talukder 38 DLR 414.

Section 96—

Lis pendens-Question of bar of appeal-The doctrine of /is pendens does not make alienations made during pendency of a suit void but only that such alienation will not affect the rights of other parties to the suit. It means that the purchaser pendente lite is bound by the result of the litigation. In the instant case, the petitioner having alleged that he had purchased the suit land and the decree passed in the suit adversely affected his interest the District Judge has committed an error of law in not according permission to the petitioner to file the appeal.

Bangladesh Leaf Tobacco Company Ltd vs Md Abdul Mannan 43 DLR 7.

Section 96—

Person not entitled to take appeal-the lower Appellate Court has come to a definite finding that the appellant purchased the land from one Nirode who had no saleable interest and as such he has not been affected by the ex parte decree. Nirode having no subsisting interest to transfer the land to the appellant and the appellant having not been made party in the suit he had no locus standi to file the appeal.

Gura Meah vs Haripada Parimal 43 DLR 181.

Section 96—

Appeal-Effect of its disposal -'Appeal' which has not been defined in the Code, is meant to be an application by an aggrieved party asking an appellate Court to set aside, modify or revise a decision of a subordinate court-an 'appeal' even if irregular, incompetent or time-barred is nonetheless an appeal-the order of dismissal of a memorandum of appeal as time-barred comes within the deeming provision of section 2(2) of the Code, because by such an order the rights of parties with regard to matters in dispute are finally determined.

Abdul Mannan vs Jobeda Khatun 44 DLR (AD) 37.

Sections 96 & 104—

If anybody is aggrieved by the judgment and decree, he can file an appeal although he is not a party in the suit.

Delwar Hossain (Md) vs Bangladesh and others 54 DLR 494.

Section 96(3) and Order II rule 2(2)—

Consent Decree-Limitation and Estoppel - Plaintiffs elected to give up all the reliefs prayed for in the suit and to limit their prayer, by amendment, to a declaration that they are the sole legal heirs of the loanee. On understanding with the plaintiffs, the defendants neither opposed the amendment nor advanced any argument. Since the plaintiffs elected to relinquish all reliefs except the one for saving the suit from limitation and to secure some benefits for themselves, they are bound by the principle of estoppel and cannot be allowed to argue for the same reliefs which they had voluntarily abandoned. The decree obtained by them being based on understanding and consent of the parties, they are not permitted to take any appeal from such consent decree. On the same principle, the defendant is also barred from preferring any appeal from the High Court Division's judgment.

Parveen Babu vs. BHBFC 42 DLR (AD) 234.

Section 98—

Section 98 of the Code of Civil Procedure conceives of a reference only when the judges of a bench composing of more than two judges differ on point of law. The judges then may state the point of law upon which they differ and the matter shall then be heard upon. that point by one or more judges as appointed by the learned Chief Justice.

Uttara Bank Ltd vs Syed Abidur Reza and ors 56 DLR 461.

Section 98 & Order XLI rule 4—

Even a third party, if he is aggrieved by the decree, can file an appeal.

Indu Moti Howlader vs Additional Deputy Commissioner and others 50 DLR 444.

Section 100—

Absolute bar on interference by the High Court on findings of facts by the subordinate Court.

The Privy Council emphatically declared under section I 00 of the present Code that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however, gross or inexcusable the error may seem to be; and they added a notice of warning, that no court in India has power to add or enlarge the grounds specified in section 100.

Abdul Mannan Khan vs Bangladesh 38 DLR (AD) 201.

Section 100—

The appellate court reversed the finding of fact on evidence but once it is shown that such reversal has been made without taking notice of the documentary evidence the second appellate Court may reassess the evidence and come to its own finding on this point.

Abdul Latif vs Abdul Malek Kazi 38 DLR (AD) 22.

Section 100—

Where High Court Division can invoke its jurisdiction.

It is now well-established that the High Court Division can only invoke its jurisdiction under the said section if there is any error of law or procedure committed by the first appellate Court and such error has affected the merit of the decision, otherwise a finding of fact, however wrong it might appear, cannot be interfered with in second appeal.

Naimuddin vs AK Biswas 39 DLR (AD) 237.

Section 100—

High Court Division's power in respect of finding of fact by the first appellate Court.

If a finding is not based on evidence or if it is based on utter inadequacy of evidence on which no reasonable conclusion can be reached then interference therewith in second appeal is certainly justified. High Court's power in second

appeal does not include power to review the evidence to come to a finding of its own on a question of fact, but the High Court can give a finding which has not been given by the lower appellate Court on the evidence on record.

Naimuddin vs AK Biswas 39 DLR (AD) 237.

Section 100—

Plaintiff in order to succeed must establish his own case to obtain a decree and weakness of defendant's case is no ground for passing a decree in favour of the plaintiff.

Naimuddin vs AK Biswas 39 DLR (AD) 237.

Section 100—

Interference with the decision of lower appellate Court.

Further, the lower appellate Court made a finding that the plaintiff was out of possession for more than 12 years and consequently, the suit is time-barred. The trial Court's finding as to limitation thus stands reversed. We regret to notice that in spite of the finding as to limitation by the subordinate judge having been allowed to remain, the learned Judge of the High Court Division has found it possible and proper to restore the decree in favour of the plaintiff. We are thus of the view that the learned Judge plainly exceeded his jurisdiction under section 100 CPC and unnecessarily interfered with the decision of the lower appellate Court.

Naimuddin vs AK Biswas 39 DLR (AD) 237.

Section 100—

The learned Judge of the High Court Division failed to notice that mis-reading of evidence (by the lower court) being a mixed question of law and fact cannot be interfered with in second appeal.

Abdul Matin Chowdhury vs Chapala Rani 37 DLR (AD) 205.

Section 100-

Comparison of signatures (by lower appellate Court) is a question of fact which cannot be interfered with in second appeal.

Comparison of writing or signature with admitted writing or signature is a question of fact and the High Court Division is not to interfere with the conclusion of the First Appellate Court on such question. Comparison of signatures is a perfectly legal mode of proving hand-writing and however inconclusive such proof may be it cannot be considered as an error of law to base a conclusion on such proof alone; and a Court of second appeal is not competent to set aside a finding based on such comparison.

Abdul Matin Chowdhury vs Chapala Rani 37 DLR (AD) 205.

Section 100—

Concurrent findings of facts by the courts below binding in second appeal.

Concurrent findings of facts by the trial Court and the First Appellate Court is binding upon the High Court Division in a second appeal unless it could be shown that the said finding had been assailed by an error of law or of procedure which had affected the merit of the case.

Abdul Matin Chowdhury vs Chapala Rani 37 DLR (AD) 205.

Section 100—

There is no jurisdiction to entertain a second appeal under section I 00 CPC on the ground of erroneous finding of fact although the error may be gross or inexcusable.

Nur Mohammed vs Sultan Ahmed 40 DLR 369.

Section 100—

Findings of facts can hardly be assailed in Second Appeal.

On a careful examination of the judgment of the lower appellate Court it seems to me that finding that the kabala in question is not a benami transaction is based on solid foundation and does not call for any interference by this Court in Second Appeal as all the ingredients necessary to establish a benami transaction were found against the plaintiff and it came to the finding that the plaintiff failed to prove his title to and possession in the disputed land. These findings of facts can hardly be assailed in Second Appeal.

Mahmudul Haq vs Golap Bia 41DLR314.

Section 100 (repealed)—

Finding of fact of Court of Appeal below--Whether High Court Division can invoke its jurisdiction to interfere with the said finding-Error of law or procedure must affect the merit of the decision to warrant interference with the finding.

Md Naimuddin Sarker vs Md Abdul Biswas 41 DLR (AD) 3.

Section 100 (repealed)—

The High Court Division exceeded its jurisdiction in Second Appeal in disturbing the finding of fact as to possession without assigning any reason.

Fazar Ali vs Sikandar Ali 44 DLR (AD) 49.

Section 100 (repealed)—

Finding of fact - The High Court Division will not entertain a second appeal on the ground of erroneous finding of facts unless it is found that in arriving at the finding the Court below committed an error in procedure or law.

Nazir Ahmed vs Md Hazee Kalu 43 DLR 75.

Section 100 (repealed)—

In the instant case, registered patta Exhibit-1 and rent receipts Exhibit-2 series having not been considered by the Court below and its findings being vitiated by misreading of the material evidence the law clearly empowered the High Court Division to reverse the findings arrived at by the Courts of fact.

Golam Moula and others vs Gourpada Das and others 50 DLR (AD) 95.

Section 100 ( repealed)—

When there is no misreading of evidence or ignoring of evidence and the conclusions are based on corroborated evidence, the appraisal of evidence is not shown to be wrong and the decision is not based on mere surmises or conjectures, the finding of fact of the lower court cannot be challenged in second appeal. High Court cannot entertain second appeal on the finding even where the High Court may take a different view of facts.

Abdul Gani Khan vs Shamser Ali 45 DLR 349.

Section 100 (repealed)—

The High Court Division exceeded its jurisdiction under section 100 of the Code in disturbing the concurrent findings of fact arrived at by the Courts below in the absence of any misreading or nonconsideration of evidence or any error of law or procedure affecting the merit of the case.

Hriday Ranjan Dey and another vs Niranjan Dey and others 54 DLR (AD) 16,

Section 100 (repealed) & HS-

Extent of revisional power-With the repeal of section 100 and re-enactment of Section 115 in its new garb, the power of the High Court Division has increased to a large extent. The strict binding effect of concurrent findings of fact has been diminished to a large extent by introducing the words "error in the decision occasioning failure of justice".

Bangladesh vs Md Aslam 44 DLR 69.

Sections 100-103 (repealed)—

High Court Division in Second Appeal cannot disturb a finding of fact arrived at by the lower appellate court which is based on evidence.

Abul Basar Sawdagar vs Aminul Haq 41DLR312.

Sections 100 & 103—

High Court Division was justified in being loathe to send back the case on remand when it appeared that the plaintiff had failed to prove the essential point of demand for reconveyance within the stipulated time.

Ali Ahmed and others vs Nazimuddin Patwary and others 49 DLR (AD) 90.

Sections 100-103 (repealed)—

Whether the High Court's power in second appeal includes the power to review the evidence.

High Court's power in second appeal does not include power to review the evidence to come to a finding of its own on a question of fact, but the High Court can give a finding which has not been given by the lower appellate Court on the evidence on record. After all, every case must be decided on the facts and circumstances of that case keeping in view these broad principles.

Naimuddin Sarker vs Md Abul Kalam Biswas 41 DLR (AD) 3.

Sections 100-103-(0mitted with effect from 1-6-1979)—

Findings of fact based on erroneous exposition of law can be disturbed.

Muktar Hussain Khan vs Suresh Chandra Dey 42 DLR 86.

Section 103—

High Court Division's function in Second Appeal-Various decisions discussed. The High Court interfered with that finding and decided issues itself after resorting to section 103 of the Code. In upholding that decision it was held "that the function of the High Court in a second appeal is not the mere correction of error of a legal proposition, or pointing out the true procedure, but also to determine properly, issues of fact after making the correct exposition of law, if such determination is essential for disposal of the appeal. Subject to this narrow jurisdiction of interference, the finding of fact of the first appellate Court is conclusive and binding upon the High Court. "In 35 DLR (AD) 216 this court upheld the High Court Division's interference in second appeal with the lower appellate Court's finding of fact as to a tenancy, arrived at after excluding from its consideration the plaintiffs document of title and a long series of rent-receipts.

Sudhir Chandra vs Harimohan Das 39 DLR (AD) 218.

Section 103—

High Court Division without going into the heart of the matter objected to the finding of the appellate Court. In 38 DLR (AD) 22 it is held that the second appellate Court may reassess the evidence and come to its own finding where the appellate Court reversed the trial Court's finding of fact without taking any notice of a material document on record. It was settled long ago in Najar Chandra Pal vs Sukur Sk AIR 1918 PC 92 that the High Court should not interfere with the findings of fact on the ground that upon the document and evidence being placed before the lower court the High Court would have come to a different conclusion.

Sudhir Chandra vs Harimohan Das 39 DLR (AD) 218.

Section 103—

The suit being too old and the necessary facts and other materials being already on record, this court in exercise of its power under section 103 of the Code should itself discuss and decide the same.

Abdur Rahman vs Tazlul Karim Sikdar and others 48 DLR 361.

College Teachers (University of Rajshahi) Terms & Conditions of Service Rule, 1980

CollegeTeachers (University of Rajshahi) Terms & Conditions of Service Rule, 1980

Rule16(1)(a)&(c)–

Interimadministrative order of temporary suspension from any office does not requireany prior show cause notice particularly when such order is followed by aquasi–judicial proceeding.

DhunatDegree College and others vs Md Abdus Samad and others 49 DLR 38.

Colonial Courts of Admiralty Act (India) 1891

ColonialCourts of Admiralty Act (India) 1891

TheCourt of Admiralty of High Court Division has derived its jurisdiction fromthese Acts–The suit is maintainable.

MuhajakShipping Co Ltd vs MV Sagar 39 DLR 425.

Causesarising out of a contract of marine insurance would come under the provisionsof Admiralty Act of 1861 for this court to have jurisdiction.

Bengal LinerLtd. Dhaka vs Sadharan Bima Corporation 42 DLR 281.

Companies Act, 1913

CompaniesAct, 1913

[VII of1913]

Sections 3–

Admission ofa winding up application– Great care to be taken.

Amin ScalesLtd vs Md Yakub 39 DLR (AD) 201.

Sections 3–

Court'sinherent jurisdiction to stay proceedings when there is a bonafide disputeregarding debt or malafide intention of the petitioner.

Amin ScalesLtd vs Md Yakub 39 DLR (AD) 201.

Section 3–

Registrarhas no authority to accept an annual report submitted by a company undersection 3–Balance sheet and profit and loss account to be submitted undersection 131 by the Company at the general meeting. When the High Court Divisioncondones delay in holding annual meeting submission of balance–sheet and profitand loss account will follow the altered schedule.

BCIC vsRegistrar Joint Stock Co 39 DLR 1.

Section 3–

CompanyCourt–Jurisdiction – Matters decided under the Companies Act are not under theConstitutional jurisdiction of the High Court Division but under a specialstatutory jurisdiction conferred upon the High Court Division by the CompaniesAct itself.

Uttara JuteFibres Industries vs Ashraf Jute Mills 44 DLR 452.

Section 11–

Section 11of the Companies Act provides that a company shall not be registered by a nameidentical with that by which a company in existence is already registered or sonearly resembling that name as to be calculated to deceive.

ShafiqulHaider vs Al–Amin 39 DLR (AD) 103.

Sections 32 and 131–

No authorityfor the proposition that the Registrar can withhold acceptance of an annualreturn submitted by a Company under section 32 of the Companies Act until itsatisfies the Registrar that its annual general meeting was held within thescheduled period.

Registrarhas no option but to accept the filing made by the company–In case of company'sviolating provisions of section 76(1) he can initiate appropriate proceeding.

BangladeshChemical Industries Corporation vs Registrar, Joint Stock Companies 38 DLR 356.

Section 34–

Instrumentof share transfer– Affixing of stamp–there is no time limit or anyconsequential obligatory if stamp is not affixed with the instrument oftransfer. There is no penal provision either. Stamp may be paid even aftersubmission of the instrument to the Company. In the facts of this case 26 DLR303 held not applicable.

Shoaib vsUttara Bank Ltd 43 DLR 329.

Sections 34 & 38–

Maintainabilityof application before the Company Court for rectification of share register–itis a discretion of the Court to see whether the point at issue relating torectification of share register can be resolved on the basis of materials onrecord. If the case is complicated and very doubtful and if it appears thatwithout resorting to some procedure other than the summary proceeding undersection 38 of the Act a case cannot be disposed of, the Company Court shouldnot interfere with such a matter. But if it is apparent on the face of therecords that legal rights of the parties are clear and can be settled on thebasis of the materials on record, the Company Court can exercise itsjurisdiction in the matter.

MohiuddinAhmed vs Lutfur Rahman 44 DLR 48.

Section 34(3)–

The transferof shares shall not be lawful without any instrument of transfer.

HaqueBrothers vs Shamsul Haque 39 DLR 290.

Section 34(3)–

This provisionmakes it mandatory for a transfer of shares to be accompanied by an instrumentof transfer.

Nur Mohammadvs Agrani Flour Mills ltd and others 47 DLR 462.

Section 34(7)–

Discretionas to registration of any transfer of shares implies just and properconsideration of the proposal in the facts and cicumstances of the case.

GiasuddinAhmed vs Green Delta Insurance Company Ltd and another 56 DLR (AD) 31.

Section 38–

Powers ofCourt to rectify register. The jurisdiction conferred on Company Court undersection 38 is very wide and unlimited though it is a discretion to grant orrefuse such relief. It was not found that the Company Judge has acted illegallyin allowing such relief under section 38 of the Companies Act in the facts ofthe present case. Section 38 of our Companies Act is equivalent to section 155of Indian Companies Act. In section 155 of the IndianAct, "the name of anyperson is fraudulently inserted or omitted" has been omitted; whereas insection 38 of the Companies Act it has been retained. Thus the scope of section3 8 of the Act is very wide and the Company Judge has rightly passed the orderof rectification of share registers of the Companies.

HaqueBrothers vs Shamsul Haque 39 DLR 290.

Section 38–

Althoughsection 38 of the Companies Act empowers the Company Court to rectify shareregister it is well–settled that a suit is not barred thereby, especially whendetailed evidence is to be taken to settle issue of fact.

Afruz Miahvs Al–Haj Md Siraj Miah 43 DLR (AD) 89.

Section 38–

Section 6 ofthe Limitation Act does not bring an application under section 38 of theCompanies Act within its ambit. The suit is restricted to a suit or proceedingto be instituted or application to be made by a person suffering from any legaldisability.

TamizulHoque and another vs Shamsul Haque and others 43 DLR (AD) 34.

Section 38–

Rectificationof shares– When papers and documents filed by the parties are sufficient tosettle their rights and interests, the jurisdiction of the Company Court issufficiently wide to resolve the question of rectification of shares.

Rowshan AraBegum vs Doctor's Chemical Works Ltd 44 DLR 37 i.

Section 38–

Rectificationof share register– It is not necessary to produce the script (original sharecertificate) before the Managing Director for transfer of the shares because heknew about the shares. In the facts of the present case, non–production ofscripts will not debar the transferee from getting his name registered in theCompany as its share–holder.

Sher AliAmir Ali Virjee vs Eastern industries 43 DLR 54.

Section 38–

Maintainabilityof an application for transfer of shares–If a dispute cannot be resolvedwithout resorting to any other means excepting the papers and documents filedbefore the Court in that case the question may arise whether such anapplication will be maintainable or not.

Sher AliAmir Ali Virjee vs Eastern Industries 43 DLR 54.

Section 38–

Rectificationof share registerRectification after renunciation of shares of individuals infavour of a corporation whether valid–It is not correct to say that shares canbe transferred only to an individual national and not to any juristic person,because the latter is not a citizen. A legal and juristic person or bodycorporate is a person by fiction of law and some human being is entitled to acton its behalf. Petitioner Investment Corporation of Bangladesh being a legaland Juristic person is competent to purchase the shares.

Investment Corporationof Bangladesh vs Bata Shoe Company (Bangladesh) Ltd 43 DLR 487.

Section 38–

Rectificationof share register –When facts are not disputed or complicated, rather papersand documents filed by the parties are sufficient to settle their rights andinterests, the jurisdiction of the Company Court is sufficiently wide toresolve the question of rectification.

Shoaib vsUttara Bank Ltd 43 DLR 329.

Section 38–

When aSingle Company Judge of the High Court Division is exercising power undersection 38 of the Companies Act an appeal from its decision has to be taken byway of leave to the Appellate Division under Article 103(1) of theConstitution.

Moqbul Ahmedand another vs Ahmed impex (Pvt) Ltd 48 DLR (AD) 82.

Section 38–

Judgment ofa Division Bench of the High Court Division in an appeal against the Judgmentof a Single Company Judge exercising power under section 38 is taken to be nonest, having been passed completely without jurisdiction, a classic example of coramnon judice.

Moqbul Ahmedand another vs Ahmed Impex (Pvt) Ltd and others 48 DLR (AD) 82.

Section 38–

A person aggrievedby any ground specified in the section may apply to the Court for rectificationof the register. It gives a wide ranging power to the Court to either rejectthe application or order rectification. It also empowers the Court to decidethe question of title of any other person with regard to the shares for thepurpose of rectification or otherwise of the register.

UnitedChemicals and Pharmaceuticals Ltd vs Niranjan Dey and others 47 DLR 423.

Section 38–

A finding offact by the Company Court Judge is final and conclusive and the same cannot beassailed in an appeal under section 38 of the Companies Act.

UnitedChemicals and Pharmaceuticals Ltd vs Niranjan Dey and others 47 DLR 423.

Section 38–

A company inits article may provide the board of directors with the power to refuseregistration of transfer of any shares.

GiasuddinAhmed vs Green Delta Insurance Company Limited and another 52 DLR 41

Section 38–"Discretion"did not mean a bare affirmation or negation of a proposal, it implied just andproper consideration of the proposal in the facts and circumstances.

GiasuddinAhmed vs Green Delta Insurance Company Limited and another 52 DLR 41

Section 38–

In theabsence of any definite statement from the respondent about the delivery of theshare certificate, and in view of the documents on record admitting that theshare certificate was not delivered to the company or to respondent No. 2, itcannot be accepted that the share certificate was in fact handed over to thecompany or to respondent No. 2.

Abu Taher vsNur Muhammad and others 53 DLR (AD) 88

Sections 38 & 40–

Shareregister is maintained under section 40 which is prim a facie evidence of anymatter to be inserted therein but where both parties have led all theirevidence, the question of initial presumption as contemplated in section 40lost all its importance. When the facts involved are not complicated callingfor a detailed investigation in a separate forum, applications for correctionof share registers are quite maintainable.

TamizulHaque vs Shamsul Huq 43 DLR (AD) 34.

Sections 38 and 162–

Two prayers,one for winding up of the company under section '162 and another forrectification of the share–register under section 38 of the Companies Act inthe same application made before the Company Judge, cannot be entertained.

EllalTextile Mills Ltd vs Md Abdul Awal, 38 DLR (AD) 26.

Sections 38 & 162–

The Court isto examine the case as a whole on the basis of given materials. There is noscope for rectification of share register under section 38 of the Act assuggested on behalf of the respondent, when the petitioner has founded his casefor winding up of the company.

Md IsmailSiddique vs Messrs Crescent Apparels (Private) Ltd 43 DLR 99.

Sections 38 and 162–

Prayer forrectification of share–register–Where a winding up order is passed,rectification prayer must be refused.

EllalTextile Mills Ltd vs Md Abdul Awal 38 DLR (AD) 26.

Sections 38 & 246–

The rulemaking power of the Supreme Court does not extend to providing an appellateforum from the decision of a Single Company Judge of the High Court Divisionacting under section 38 of the Act.

Moqbul Ahmedand another vs Ahmed lmpex (Pvt) Ltd and others 48 DLR (AD) 82.

Section 76(1)–

The words"after the holding of the last preceding general meeting"–mean actualholding of the meeting–Condonation of delay by the High Court's direction meansa new schedule for holding such a meeting starts.

BCIC vsRegistrar, JS Co 39 DLR 1.

Section 76(1)(2)–

Law does notauthorise the Registrar to act as a mini–court– If the Registrar is of theopinion that any company violated the provision of section 76(1) of theCompanies Act, he can initiate appropriate legal proceedings.

BCIC vsRegistrar, JS Co 39 DLR 1.

Section 76(1)(2)(5) –

Words"not more than 15 months after holding of the last preceding generalmeeting"– to be interpreted in two different ways.

BCIC vsRegistrar, JS Co 39 DLR 1.

Section 76(1)(2)(5)–

When thecompany has actually held its last preceding general meeting within theextended time granted by the High Court Division, the legal obligation to holdthe next general meeting will start from the date when the meeting was heldwithin time granted by the High Court Division.

BCIC vsRegistrar, JS Co 39 DLR 1.

Sections 79(3) and 76(3)–

Powersconferred under sections 79(3) read with section 76(3) of the Companies Act tocall a general annual meeting, are exercisable by the court in thecircumstances stated therein. The Court may intervene by directing the holdingof a meeting but exercise such powers sparingly in order to ensure neutralityand not seemed to have involved itself in the affairs of the Company.

GhyasuddinAhmed vs Qn Faruque 38 DLR (AD) 296.

Section 79(3)–

When theCourt may direct the calling of a Company's meeting.

GhyasuddinAhmed vs Qn Faruque 38 DLR (AD) 296.

Section 79(3)–

Thereremains no doubt about the powers of the Court to call a meeting of the Companywhen invoked by a share–holder or director of the Company under section 79(3)of the Act.

GhyasuddinAhmed vs Qn Faruque 38 DLR (AD) 296.

Section 86G–

BangladeshBank has not been invested with any power for removal of a Director of aBanking Company.

KhondkerMahtabuddin Ahmed vs Bangladesh Bank 47 DLR 589.

Section 105C–

Increase ofshare by the so–called additional special general meeting and distribution ofthe same amongst 3 members are illegal and unauthorised in as much as under thelaw this was the function of the Board of Directors.

Rowshan AraBegum vs Doctor's Chemical Works Ltd 44 DLR 371.

Sections 109 and 120–

Extension oftime for registration made where failure to register was through inadvertenceand such omission caused no prejudice to the members of the Company or itscreditors.

Aqua CultureFarms vs Registrar, Joint Stock Companies 42 DLR 43.

Sections 152 & 163–

Therespondent Company not being a financial institution cannot take money as aloan and give interest thereon. Under the company law if money is required itmay take it by way of issuing debenture and pay interest, etc.

AKM AbdulLatif vs Banani Metal Limited, and others 52 DLR 62

Section 162–

A companymay be wound up by the Court upon the resolution that the company be wound upby the Court and on the ground that the Court would be of the opinion that itis just and equitable that the company should be wound up. The principle thatwould guide the dissolution of a partnership firm would also be applicable to acase of winding up of a private company– A mere lack of understanding whicharose out of a personal dispute alone cannot be a ground for–winding up thecompany. Parties seeking for an order from the Court must have an equity in hisfavour.

M Al–Aminvs Shafquat Haider 42 DLR 302.

Section 162–

Winding upmatter is a serious affair. The winding up matter is a serious affair which isevident from the perusal of the entire Part V of the Act and in this connectionthe anxiety of the Privy Council in the case of unjustified winding up ordermay be noticed.

Ellal TextileMills Ltd vs Abdul Awal 38 DLR (AD) 26.

Section 162–

Plea forwinding up of a company–Company Judge is competent to dispose of winding–uppetition summarily on affidavits and counter–affidavits of parties. CompanyCourt has inherent power to stay all further proceedings sine die for the endsof justice when such petition is malafide having been made for a collateralpurpose and the same is an abuse of the process of the court. Order stayingwinding up petition sine die amounts to rejection of such petition. It is notlegally permissible to reopen the matter on the grounds as contained in theexisting petition–New facts cannot be incorporated by amending the existingwinding up petition. Revival of the present petitions are uncalled for– Filingof fresh winding up petition will depend on new or continuing causes of action.

Dr. NaimurRahman vs Shahbazpur Tea Co ltd 43 DLR (AD) 169.

Section 162–

Winding upof a company—question of locus standi

Since thepetitioner is one of the original promoter–directors of the Company and is nowchallenging the transfer of his shares in the Company on grounds of fraud theapplication under section 162 of the Act is maintainable as he has still gotsubsisting interest in the company.

IsmailSiddique vs Crescent Apparels (Private) Ltd 43 DLR 99.

Section 162–

When aproceeding before the High Court Division is pending under section 162 of theCompanies Act, the fate of the Company with all assets and liabilities as wellas rights of all creditors, secured or otherwise, and the share holders are subjudice before the court.

BRTC vsAshraf Jute Mills Ltd 45 DLR 282.

Sections 162 & 163–

Landlord'sright to seek winding up of a company=when a debt due by a company isestablished and remains unsatisfied, it is not under discretion of the Court torefuse creditor an order for winding up of the Company. The Court is toconsider the nature of the money owing to the creditor. Money owing is thatwhich is legally recoverable. The petitioner being admittedly landlord and thedefendant company being unable to pay its rent, the application for winding upof the latter is maintainable.

BRTC vsAshraf Jute Mills 43 DLR 240.

Sections 162 & 163–

Winding upof a Company for non–payment of rent–An arrear house rent is the liability of acompany and if a company is unable to pay such liability it may be wound up.

NizamulHuque vs Singa Bangla Garment Manufacturing Company (Pvt) ltd 43 DLR 603.

Sections 162 & 163–

Therespondent company is out and out a defaulter and is unable to pay the debt.After considering the materials on record and submission made by the Advocatefor the petitioner it appears that it is just and proper that the respondentcompany be wound up.

Thai AirwaysInternational Limited vs Air Route Service Limited and others 48 DLR 412.

Sections 162, 163 & 166–

Winding upof a company–Maintainability of the application for winding up on grounds ofinability to pay debts was challenged upon a counter–claim of money by theappellant company. The Court found the counter–claim to be just an allegation,no evidence having been placed before the Court in support of the counter–claim.Such counter–claim was not acceptable.

BangladeshTyres Ltd vs Agrani Bank & others 42 DLR 474.

Sections 162, 163 & 166 –

Petitionerbank when not entitled to interest forming part of the debts–The interestcharged against the company related to period of turmoil and for the periodfrom the date of its taking over as abandoned property till date of itsrelease. To allow such interest is absolutely discretion of the Court. Duringthis period the shareholders and Directors had legal disabilities over theaffairs of the company and as such they should not be made to pay interests forsuch period.

BangladeshTyres Ltd vs Agrani Bank & others 42 DLR 474.

Sections 162, 163 & 166–

Winding upon plea of inability to pay debts– collateral security of the appellant companyalong with the value of the lands where its factory is situated and the valueof machineries when taken up together, debts to the petitioner bank were fullysecured. In such a position no application for winding up can be maintained.

BangladeshTyres Ltd vs Agrani Bank & others 42 DLR 474.

Sections 162, 163 & 166 –

In the factsof counter–claims raised the legal liability of the company may be determinedin a regular suit, even after the decree in the money suit, the bank may beentitled to go for winding up proceeding if the company fails to pay thedecretal amount. When a bonafide dispute over the claim of debt is made,winding up proceeding is not an appropriate legal proceeding.

BangladeshTyres Ltd vs Agrani Bank & others 42 DLR 474.

Sections 162, 163 & 166–

A limitedcompany being a juristic person, lives, runs and functions under the provisionsof a statute; death warrant can be issued under the same statute. The deathwarrant in the form of winding up should be sparingly issued. To the lastminute effort should be made to save a company from liquidation.

BangladeshTyres Ltd vs Agrani Bank & others 42 DLR 474.

Sections 162, 163 & 166–

The companyjudge simply incorporated the claims made by the creditors without consideringin detail the assets and liabilities of the company and other materials so asto see whether the company was actually unable to repay the loan. His sweepingfinding for winding up was not acceptable.

BangladeshTyres Ltd vs Agrani Bank & others 42 DLR 474.

Section 162, 163, 166 & 202–

Winding upof a company by court–Circumstances in which winding up will be ordered– Thebasis of an order for winding up a company on the ground of its inability topay its debts is always insolvency. A company must be found to be commerciallyinsolvent when its existing and probable assets are insufficient to meet theexisting liabilities, it is heavily indebted to various creditors, all itsassets being in mortgage or in pledge, and there is no possible chance of aprofit being made or its business carried out.

Agrani Bankvs Bangladesh Tyres Ltd 43 DLR (AD) 164.

Sections 162 & 166–

Winding upof a Company– Whether mismanagement could be a ground for winding up–There maybe certain irregularities and omissions in the management of a company. Butmere allegation of mismanagement will not make the company liable to be woundup on the just and equitable reason. Where nothing more is established thanthat the directors have misappropriated the funds of the company an order forwinding up would not be just and equitable. Allegations of misconduct of thedirectors or that the business has been carried on at a heavy loss are per senot grounds on which the court would order winding up. Where petition by ashare–holder contains allegations which all relate to the internal managementor mismanagement of the company's affairs, it is a matter for the share–holdersthemselves to deal with and not one that would call for interference by thecourt.

Rehana Ahmedvs Nahar Shipping Lines Limited 44 DLR 256.

Sections 162(1) & 166–

Theinclusion of a Company of which the Government is the 100% shareholder, in theschedule of the Public Corporation (Management and Co–ordination) Ordinance,1986 (Ordinance 48 of 1986) does not make the company Public Corporation andthe provisions of liquidation as contained in the Companies Act are applicableto such an enterprise in spite of the inclusion of the company in serial No. 32of the schedule on inclusion of the company in the serial 37 of the members ofthe consultative committee of public enterprises of the said Ordinance of 1986.

BangladeshConsumers Supplies Co Ltd vs Registrar, Joint Stock Company 46 DLR 552.

Sections 162(1) & 166–

Government,while doing commercial or trading business through a company, does not functionas· a department or organ of the government in its administrative capacity andsuch a company satisfies all the qualifications of a company within the meaningof the Companies Act and the petition for its winding up is competent.

BangladeshConsumers Supplies Co Ltd vs Registrar, Joint Stock Co. 46 DLR 552.

Section 163–

Agrani Bankvs Bangladesh Tyres Ltd and others 43 DLR (AD) 164.

Section 166–

Winding upof a Company—Whether mismanagement could be a ground for winding up– There maybe certain irregularities and omissions in the management of a company. Butmere allegation of mismanagement will not make the company liable to be woundup on the just and equitable reason–Where nothing more is established than thatthe directors have misappropriated the funds of the company an order forwinding up would not be just and equitable. Allegations of misconduct of thedirectors or that the business has been carried on at a heavy Joss are per senot grounds on which the court would order winding up. Where petition by ashare–holder contains allegations which all relate to the internal managementor mismanagement of the company's affairs, it is a matter for the share–holdersthemselves to deal with and not one that would call for interference by thecourt.

Rehana Ahmedvs Nahar Shipping Lines Limited 44 DLR 256.

Section 166–

Winding upof a company by court– Circumstances in which winding up will be ordered–Thebasis of an order for winding up a company on the ground of its inability topay its debts is always insolvency. A company must be found to be commerciallyinsolvent when its existing and probable assets are insufficient to meet theexisting liabilities, it is heavily indebted to various creditors, all itsassets being in mortgage or in pledge, and there is no possible chance of aprofit being made or its business carried out.

Agrani Bankvs Bangladesh Tyres Ltd and others 43 DLR (AD) 164.

Section 171–

The meaningof the expression leave of the Court referred to in this section means theconsent of the winding up Court.

Bazlul Ghanivs Pioneer Bank Ltd Comilla 42 DLR 480.

Section 171–

The BankingCompanies Ordinance 1962 made special provisions for banking companies whenthey are in liquidation and empowered the High Court Division exclusivejurisdiction to decide any claim by or against a banking company. Though thisOrdinance is in addition and not in derogation of the Companies Act or anyother law for the time being in force, section 60 of the Banking CompaniesOrdinance by its non obstante clause made provision to prevail over theCompanies Act, Civil Procedure Code or any other law for the time being inforce.

Bazlul Ghanivs Pioneer Bank Ltd, Camilla 42 DLR 480.

Section 171–

Auction saleof property of a company–

The Companyis in liquidation long afterwards–Question of setting aside the saleProvisions of the Banking Companies Ordinance when read with those of theCompanies Act and the Public Demands Recovery Act, it appears that theprovisions of the Banking Companies Act shall be effective iri addition to andnot in derogation to the Companies Act or any other law for the time being inforce excepting the provisions which are specifically made in the Ordinance. Inview of the fact that the law under which the auction sale took place has madeprovisions for the aggrieved person to seek the relief of setting aside theauction and the plaintiff did not avail of the forum for appropriate remedy andthe auction is still subsisting in the eye oflaw, the same cannot be set asidenow in the present proceeding under the Bangladesh Companies Ordinance.

OfficialLiquidator vs Jahura Khatun 43 DLR 558.

Section 184–

The mootquestion that was submitted before him (ie the Company Judge) was whether theprayer could be entertained together (ie for winding up the company as well asfor rectification of share–register) on the same petition.

EllalTextile Mills Ltd vs Abdul Awal 38 DLR(AD) 26.

Section 184–

The purportof the petition that was filed by the respondents was to rectify share registerby cancelling the allotment of 1700 shares and at the same time for winding upof the Company and that could be dealt with under section 184.

Ellal Textile Mills Ltd vs Abdul Awal 38 DLR (AD)26.

Section 194–

Moneybelonging to the company under liquidation cannot be withdrawn and paid to theOfficial Liquidator for the purpose of dissolution of another company underliquidation to be used for dissolution of the company which has no assets ofits own to meet the costs and expenses of its dissolution. The OfficialLiquidator is to seek fund from the Government in this connection.

HansaInternational vs Eastern Pharma Ltd 45 DLR 482.

Section 202–

Winding upof a company by court–Circumstances in which winding up will be ordered–Thebasis of an order for winding up a company on the ground of its inability topay its debts is always insolvency. A company must be found to be commerciallyinsolvent when its existing and probable assets are insufficient to meet theexisting liabilities, it is heavily indebted to various creditors, all itsassets being in mortgage or in pledge, and there is no possible chance of aprofit being made or its business carried out.

Agrani Bankvs Bangladesh Tyres Ltd and others 43 DLR (AD) 164.

Companies Act, 1994

CompaniesAct, 1994

[XVIII of 1994]

Sections 2(d) & 3(1) –

The CompanyCourt has a special company jurisdiction and that jurisdiction has to be foundfrom specific provisions of the Act.

Abdul Muhitand others vs Social Investment Bank Limited (SIBL) and others 54 DLR 306.

Section 38–

Discretion asto registration of any transfer of shares implies just and proper considerationof the proposal in the facts and circumstances of the case.

GiasuddinAhmed vs Green Delta Insurance Company Ltd and another 56 DLR (AD) 31.

Section 38–

Section 38of the Companies Act gives the Court a wide discretion to scrutinize any fraud,error or undue influence or misrepresentation in the matter of transfer of anyshare and grant relief commensurating with the appropriate possible relief.

Ahmed lmpex(Private) Ltd & others vs Moqbul Ahmed and others 56 DLR (AD) 92.

Section 38(3)–

In order tobe a valid and complete transfer of share for the company to register in itsregister of members the instrument of transfer must be executed both by thetransferor and the transferee, the instrument of transfer must be duly stampedand such instrument is delivered to the company along with the scripts.

Ahsan KarimJinnah vs Meghna Insurance Company Limited & others 52 DLR 160

Section 43–

Thejurisdiction of the Company Court is sufficiently wide to resolve the questionof rectification of the register of members.

Matiur Rahman(Md) vs Dhaka Stock Exchange Ltd and another 51 DLR 530.

Section 43–

Theapplication under section 43 of the Companies Act for the rectification of theMembers Register is held to be not maintainable as the said matter has not beenearlier referred to the Arbitration Tribunal as provided in section 12 of theOrdinance and/or as stipulated in Article 66 of the Articles of Association ofthe Chamber of Commerce.

IbrahimCotton Mills Ltd and others vs Chittagong Chamber of Commerce and Industry andothers 51 DLR 538.

Section 59(1) –

A mistake,whether clerical or others in the Memorandum of Articles can be amended byaltering the Memorandum and Articles. Court's approval has to be obtained ifparticular amendment requires such approval.

TropicalHomes Limited vs Registrar of Joint Stock Companies 48 DLR 576.

Sections 81(2) & 85(3)–

Delay inholding the adjourned annual general meeting of the petitioner company iscondoned as it appears that the same could not be held as the balance sheetprofit and loss account were not ready to be laid in the meeting.

Bengal SteelWorks Limied vs Registrar of Joint Stock Companies and Firms 48 DLR 101.

Sections 81(2) & 85(3)–

If it ismade to appear to the Court that the annual general meeting or meetings werenot held in accordance with the directions made by its earlier order the Courtshall have competence to order for holding such meeting or meetings afresh.

Tahmid Ahmedvs Jalaluddin Jaffar Ali Hussain.YZ DLR 141

Sections 81(2) & 85(3)–

The omission of notifying a director about theholding of a board meeting invalidates the proceedings and such meeting ofdirectors cannot be said to have been duly convened in the absence of serviceof notice.

Tahmid Ahmedvs Jalaluddin Jaffar Ali Hussain 52 DLR 141

Section 85(2)(3)–

If for any reason it is impracticable to call,hold and conduct a meeting on the happening of any circumstance the Court beingsatisfied to that effect to call a meeting in the manner such a meeting is tobe called, could pass an order for holding the meetings to be conducted by aneutral Chairman even in the absence of an application.

UnitedCommercial Bank Ltd vs Jahangir Alam Khan and others 56 DLR (AD) 76.

Section 85(2)(3)–

If for anyreason it is impracticable to call, hold and conduct a meeting on the happeningof any. circumstance the Court being satisfied to that effect to call a meetingin the manner such a meeting is to be called, could pass an order for holdingthe meetings to be conducted by .a neutral Chairman even in the absence of anapplication.

United Commercial Bank Ltd vs Jahangir Alam Khan and others 56 DLR(AD) 76.

Sections 85(3)–

There is nofetter on the powers of the Court in invoking sub–section 3 of section 85 tocall, hold and conduct a meeting and not restricted only to the articles or theAct. However, the Court shall not invoke its power on a mere trifling domesticsquabble between the directors but only when it is necessary in the paramountinterest of the company, looking at the facts from a reasonable commonsensepoint of view and acts as a prudent person of business to decide whether it hasbecome impracticable to call a general meeting.

Jahangir Alam Khan vs Registrar, Joint Stock Companies and ors 55DLR 495.

Sections 85(3)–

The Court,in considering a prayer for holding a meeting, should be cautious and in normalcircumstances should not supersede the rights and wishes of the share–holdersand their representatives, the directors to manage and run the companyincluding holding of their meetings.

JahangirAlam Khan vs Registrar, Joint Stock Companies and ors 55 DLR 495.

Section 89(3)–

Theprovision of law that until the contrary is proved a meeting of the Directorsof a company shall be deemed to have been duly called will be of no availwithout the foundation of minutes of the meeting which is yet to be produced.

Mohibul Ahsan (Md) (Shawan), Director, Ittefaq Group ofPublications Ltd and others vs Ittefaq Group of Publications Ltd represented byMainul Hosein Executive Director 1 and others 50 DLR (AD) 138.

Section 91–

Appellantsrepresenting majority shares having contested the written objection filed bythe respondent No.1 challenging election of Mr A Matin Khan before the CompanyJudge have locus standi to file the appeal.

ASF Rahman and another vs AM Agha Yousuf and others 52 DLR (AD)127.

Section 91(1)(b)–

Under thegarb of recommendation Board of Directors cannot reject the candidature of anyperson for the election to the office of the director of the Bank.

ASF Rahman and another vs AM Agha Yousuf and others 52 DLR (AD)127.

Section 95–

For holdinga valid meeting of the Board of Directors written notice must be given to allthe members of the board of directors. If anyone is left out the resolutiontaken in that meeting becomes invalid.

Ittefaq Group of Publications Limited & others vs ArabBangladesh Bank Limited & others 50 DLR 597.

Section 95–

In allcompanies either private or public for holding a board meeting a written noticeshall be given to every director and civil Court may not interfere when thereis a valid meeting. When there is prima facie and invalid resolution the civilCourt can interfere. The respondents are restrained by an order of temporaryinjunction from acting on the alleged resolution of the Board of Directors.

Ittefaq Group of Publications Limited & others vs ArabBangladesh Bank Limited & others 50 DLR 597.

Section 95–

The Courtsare generally reluctant to interfere with the decisions taken at companymeetings unless there is almost a manifest breach of the Articles or theStatute, because it is the company and not the Court which is responsible forits management.

Mohibul Ahsan (Md) (Shawan), Director, Ittefaq Group ofPublications Ltd and others vs Ittefaq Group of Publications Ltd represented byMainul Hosein Executive Director 1 and others 50 DLR (AD) 138.

Section 95–

Unlessjurisdiction is provided in the Companies Act the petitioners cannot come tothis Court for violation of any provision of the Act. This court does not haveany general, plenary or residuary jurisdiction to deal with other matters andquestions arising under the Companies Act.

Abdul Muhitand others vs Social Investment Bank Limited (SIBL) and others 54 DLR 306

Section 108–

There was noobligation on the part of the petitioner to tender resignation in terms ofArticles 49 ( c) as stated in the plaint specially when by operation of law, heautomatically ceased to be a director.

TanveerulHaque vs Unistar Shipping Limited and ors 52 DLR 215

Sections 210(7) & 233–

Theprovisions of appointing auditors in the Annual General Meeting is forprospective auditing of a Company when the minority share–holders apply undersection 233 of the Companies Act, the Court has inherent power to makealternative arrangements for appointment of Auditors for past years, if noauditing has taken place.

Faruk (Md) vs Abdul Hamid and others 51 DLR (AD) 48

Section 233–

Half of theboard comprises the petitioners. In other words, out of 4 directors, two arethe petitioners and the petitioners hold 50% of the shares. Thus thepetitioners, having holding 50% of the shares cannot be said to be minorityshare–holders. Accordingly, the petitioners are not entitled to invoke thejurisdiction of the court under section 233 of the Companies Act, 1994.

Moksudur Rahman, son of late Al–haj Syedur Rahman and another vsBashati Property Development Limited, and others 49 DLR 539.

Section 233–

There cannotbe any profit out of revaluation of any fixed assets of the company withoutdisposal of the same by sale or otherwise and that too without writing off thetrading losses in earlier financial periods.

ABS Safdarand ors vs People's Republic of Bangladesh and others 52 DLR 249.

Section 233–

Ashareholder does not become automatically entitled to any part of the profituntil a resolution is taken and a dividend is declared by the company out ofsuch profit.

ABS Safdarand ors vs People's Republic of Bangladesh and others 52 DLR 249.

Section 233–

Balance–sheet,no doubt, is a good evidence of acknowledgment of any liability of the company.But the balance–sheet should not be accepted as an acknowledgment if it isfound that the directors or those who are in control of the company tookdecision favouring or in furtherance of their interest although that was to thedetriment of the company and the minority shareholders.

ABS Safdarand ors vs People's Republic of Bangladesh and others 52 DLR 249

Section 233–

Since thepoints raised by the applications under consideration do not require detailedinvestigation and can be entertained and adjudicated upon by the Company Court,pendency of the civil suit will not operate as a bar.

ABS Safdarand ors vs People's Republic of Bangladesh and others 52 DLR 249

Section 233–

When anapplication is admitted the same is not liable to be dismissed/ rejectedsummarily without hearing on merit, unless such application is absolutelyincompetent being without jurisdiction.

NaharShipping Lines Limited and another vs Homera Ahmed and others 52 DLR 585.

Section 233–

A minorityshare holder can petition the Court for relief if there has been fundamentalbreach of the rules and where the majority endeavoring directly or indirectlyto appropriate to themselves money, property or advantages which belonged tothe company.

Syed AlNesar Ahmed, MD, United Food Complex Ltd vs Nafisa Choudhury and others 5 DLR(AD) 83.

Section 233–

This Courthas the power to give direction for protection of interest of the minority. Theword interest has been used in various legislations in various senses. In thepresent context, it need not, however be only the possibility of a pecuniaryadvantage, it may equally be the likelihood of a pecuniary loss.

NafisaChoudhury vs United Food Complex Ltd. and another 53 DLR 81.

Section 233–

The Courtcan make any just order beyond the relief sought for, to bring the affairs ofthe company to its right track to safeguard the interest of the minority shareholders.

NafisaChoudhury vs United Food Complex Ltd. and another 53 DLR 81.

Section 233–

The ManagingDirector appointed for a particular period under the articles should be allowedto function as Managing Director with all such powers as given in the Articlesof Association and in accordance with the provision of law.

Nafisa Choudhuryvs United Food Complex Ltd. and another 53 DLR 81.

Section 233–

The sectionspecifically protects the interests of the minority shareholder/ shareholderswhen prejudiced and discriminated against, it does not protect the interest ofa director, however prejudiced or discriminated by the way the company isconducted.

ASM ShamsulIslam Rashedi vs Satellite Fishing Ltd and others 54 DLR 28.

Section 233–

In anapplication under section 233 the main function of the Court is not to seewhether fraud is committed but whether the resolutions adopted are unfair tothe company and the minority shareholders.

ShahadatHossain (Md) vs Base Textile Ltd 54 DLR 583

Section 233–

For adoptionof a special resolution in any Extraordinary General Meeting amending anarticle or articles, there should be a decision of the Board expressing theneed for such amendment of the article.

ShahadatHossain (Md) vs Base Textile Ltd 54 DLR 583.

Section 233–

Nothing isproduced as evidence to show that the secretary was empowered by the concernedauthorities to call the Extraordinary General Meeting. The ExtraordinaryGeneral Meetings are not properly called meetings and no meetings in the eye oflaw. Any decision taken in those meetings suffers from illegality.

ShahadatHossain (Md) vs Base Textile Ltd 54 DLR 583

Section 233–

Absoluteauthorisation to give loan by the Managing Director from the Company's fund iscontrary to the provisions of the company law and prejudicial to the interestof the company and its members.

ShahadatHossain (Md) vs Base Textile Ltd 54 DLR 583

Section 233–

A remedyunder section 233 can be given only if the directors have acted in breach ofduty or if the company has breached any of its articles or any relevantagreement.

NaharShipping Lines Ltd and anr vs Homera Ahmed and others 56 DLR (AD) 36.

Section 241–

Thepetitioner having not shown how he would derive any advantage or minimise somedisadavantage from winding up of the respondent company he has no locus standi topetition for its winding up.

MazharulHaque vs Bulk Management (Bangladesh) Ltd, and others 48 DLR 453.

Sections 241 & 242–

The claim isnot undisputedly ascertained, and unless it is admitted it cannot be said it isa debt and the respondent company is liable to pay the debt. Winding up of acompany by Court for debt is not called for where there is a bonafide disputerelating to the existence of the debt.

Ambala ColdStorage (Pvt) Ltd vs Prime Insurance Co. Ltd 56 DLR 422.

Section 241(III)–

The companyhas been stopped for more than one year which itself is a ground for winding upof the company.

VegaSweaters (Pvt) Ltd 52 DLR 372.

Section 241(IV)–

The numberof members having been reduced to less than two the company is liable to bewound up as per section 241(1V) of the Companies Act.

VegaSweaters (Pvt) Limited 52 DLR 372.

Section 241 (V) & (VI)–

Company'sinability to pay debts, and when it is just and equitable that it should bewound up, are also legal grounds for winding up under section 241 (V) and 241(VI) respectively of the companies Act.

VegaSweaters (Pvt) Ltd 52 DLR 372.

Sections 241(V) and 250–

Windingup–An order of winding up of a company can be made in the discretion of theCourt but under section 250 of the Act; when a winding up order has been made,no suit or other legal proceedings shall be proceeded with or commenced againstthe company except by leave of the Court. If the proceeding under section 24 lof the Companies Act satisfies the requirements of law, it shall certainly findits mark in accordance with law and shall not be disallowed or deviated becauseof other equally efficacious remedies available to the petitioner in anotherforum.

Amir Hossainvs Homeland Footwear Ltd and others 55 DLR 478

Sections 242 & 248–

From theconduct of the respondent company and in the manner promises were made,assurances given, new repayment schedules chalked out again and again only tobe broken giving the impression that the affairs of the company are not cleanand above board, the opinion is that the respondent company is unable to payits debt and it will be just and equitable if the company is wound up. Hence,it is ordered that the respondent–company is wound up with immediate effect.

Eastern BankLimited vs Bengal Carpets Ltd 48 DLR 392.

Conciliation Courts Ordinance, 1961

ConciliationCourts Ordinance, 1961

Section 3& section B of Part–I of the Schedule:

Inthe Contract Act any agreement which is enforceable by law is a contract. TheAct however says that an oral agreement is not enforceable by law or that awritten agreement only is enforceable by law. The word contract may thereforemean either an oral or a written agreement. In Conciliation Courts Ordinancethe word 'Contract' has not been qualified in any way. 'Contract' shouldtherefore embrace an oral contract as well as written one.

SuchitraKumar Das vs Sree Indu Bhusan Sarkar 46 DLR (AD) 144.

Constitution of Bangladesh, 1972 [Article 102] Part I

Constitutionof Bangladesh, 1972

Article 102–

Theamendment has disrupted the constitutional fabric of Article 102 by introducingterritorial concept thereby creating difficulties and incongruities. Theamendment has created 7 High Court Divisions of mutually exclusive territorialjurisdiction.

AnwarHossain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 102–

Interpretationof Statute–The present University Ordinances and Regulations are by no means anexhaustive code of conduct of the students–Misconduct and breach of disciplineinclude many more acts of omission and commission, according to the nature ofeach such act, which are not specifically mentioned in those Ordinances andRegulations–The acts the petitioner are charged with, if established, amount toserious misconduct and breach of discipline.

In theabsence of any specific provision the procedure which the Vice–Chancellorshould adopt to form his opinion has been totally left to his discretion–Inorder to form his opinion the Vice–Chancellor may adopt any procedure which hemay deem fit according to the nature of each particular case.

FarzanaHaque vs University of Dhaka 42 DLR 262.

Article 102–

ElectionCommission may direct re–poll or accept the result of a poll though disputed bysome candidates– Election Commission's approval or concurrence is necessaryfor any fresh election if directed by the Returning Officer.

At anintermediary stage of election, writ jurisdiction is not available particularlywhen disputed questions of facts are involved except in exceptionalcircumstances such as coram–nonjudice or malice in law.

Writjurisdiction cannot be invoked as alternative remedy is available by way ofelection petition before the Tribunal.

ZakerHossain vs Abdur Rahim 42 DLR (AD) 153.

Article 102–

The writpetition challenges departmental proceeding relating to the service of thepetitioner, a Government servant. High Court Division rightly found a bar toits jurisdiction in entertaining the petition.

Md SerajulIslam vs Director General of Food 42 DLR (AD) 199.

Article 102–

Alternativeremedy– Alternative remedy of appeal provided in the Customs Act, and pleadedas a bar against writ jurisdiction, is no equally efficacious remedy.

Collector ofCustoms, Ctg vs A Hannan 42 DLR (AD) 167.

Article 102–

In a summaryproceeding under Article 102 of the Constitution disputed question of factshould not be entertained nor recording of any finding as to the same isdesirable. In summary proceeding under Article 102 of the Constitution it isneither desirable nor advisable to enter into merit and record a finding I as toa disputed question of fact. This view of ours finds support from the case ofShahabuddin Iskandar vs Bangladesh Election Commission & others reported in27 DLR 475, Amjad Hossain Howlader vs Government of Bangladesh and othersreported in 27 DLR 373 wherein a large number of decisions of the AppellateDivision and the High Court Division of the Supreme Court have been referred.All those cases lay down the well known principle that complicated question offact should not be entertained in a Writ Jurisdiction and Writ jurisdictioncannot be invoked, if any alternative remedy is available to this aggrievedparty.

Md Nawab AliKhandker vs Md Aminuddin 41 DLR 254.

Article 102–

Contract–Breach of contract – Government acting with malafide intention–Writ petitionfor breach of obligation against Government lies when the latter violates thecontract with malafide intention.

SMS Samityvs Bangladesh 39 DLR (AD) 85.

Article 102–

Disputecenters regarding payment of rent to the Government the latter denying payment,when lessee proved payment. Before cancelling the lease Government must givethe lessee an opportunity of being heard to prove his case.

SMS Samityvs Bangladesh 39 DLR (AD) 85.

Article 102–

As tointerpretation of any term of the contract or lease dispute should be resolvedafter hearing the lessee–breach alleged must be established by Government.

SMS Samityvs Bangladesh 39 DLR (AD) 85.

Article 102–

Since analternative relief was available to the petitioner the writ petition was notmaintainable. Dr MB

Rahman vsDeputy Commissioner of Taxes 39 DLR 33.

Article 102–

WritPetition–Filing of suit and Writ Petition simultaneously for the same relief–The fact of filing of the suit, which was later dismissed, was not mentioned inthe writ petition– High Court Division summarily dismissed the writ petition asbeing not maintainable on the ground of suppression of facts– No rule wasissued.

AwladHossain vs Haji Moniruddin Ahmed & others 40 DLR 427.

Article 102–

It is wellsettled that disputes which arise essentially from contract are not cognisableunder writ jurisdiction– Executive's arbitrary acts will attract writjurisdiction Wrong inferences when drawn by authority Court will interfere–Matter of contractual obligations would not be enforceable under Article 102 ofthe Constitution in absence of any such arbitrary action.

SharpingMatsajibi Samabaya Samity Ltd. vs Bangladesh 39 DLR 78.

Article 102–

Writ of certiorari– When the High Court will not interfere inexercise of its jurisdiction in certiorari–Any order passed or acts done by aperson or authority who has jurisdiction to act or pass such order, howeverwrong it may be, the High Court in exercise of its jurisdiction in a writ ofcertiorari will not interfere with it but will interfere when the person actswithout jurisdiction or coram non judice.

FazlurRahman Chowdhury vs Bangladesh 39 DLR 314.

Article 102–

High CourtDivision's power to issue writs. The initiation of the VP case and the approvalof the lease in favour of the stranger respondents 6 to 9 and the declarationof the property as vested property were all arbritrary, illegal, malafide andwithout any sanction of law. Upon the said facts and circumstances thepetitioner made this application under Article 102 of the Constitution.

Parul KusumRoy vs Bangladesh 39 DLR 389.

Article 102–

Contractualright based on the licence is not amendable to Writ Jurisdiction of the HighCourt.

Sekandar AliMiah and others vs Chairman.BJWTA. 40 DLR (AD) 262.

Article 102–

Availabilityof alternative remedy by way of appeal or revision will not stand in the way ofinvoking writ jurisdiction raising purely a question of law or interpretationof statute.

MA Hai vsTCB 40 DLR (AD) 206.

Article 102–

It wascontended that the writ petition being a proceeding in the nature of quowarranto questioning the holder of public office about his title, the questioncannot be left to be decided by compromise between the private parties as it isnot a private grievance between the appellant and respondent No.1.

Md MostafaHossain vs Sikder Md Faruque 40 DLR (AD) 10.

Article 102–

Remedy by aquo warranto proceeding in which the title to a public office may be questionedis independent of remedy available to a limited number of persons havingpersonal grievances.

Md MostafaHossain vs Sikder Md Faruque 40 DLR (AD) 10.

Article 102–

Mere delayin raising the question is not a ground for denying this extraordinary remedy.

Md MostufaHossain vs Sikder Md Faruque 40 DLR (AD) 10.

Article 102–

Disputedfacts–High Court Division erroneously interfered in the writ jurisdiction on amatter which involves a disputed question of fact–Decision is liable to be setaside– Appeal allowed.

Abdul HamidKhan vs Miah Nurul Islam & others 42 DLR (AD) 49.

Article 102–

In a summaryproceeding under Article 102 of the Constitution it is not possible to record afinding to a disputed question of fact.

Farid Mia vsAmjad Ali 42 DLR (AD) 13.

Article 102–

Court heldthat Article 102 can be invoked to require a person to show under whatauthority he claims to hold any public office only when the said personactually assumes that office or purports to do the same.

Farid Mia vsAmjad Ali 42 DLR (AD) 13.

Article 102–

Theappellant filed the writ petition at a time when the Court of Settlement wasyet to be constituted. The High Court Division having admitted the writpetition, it was not quite proper to decline interference after three years onthe ground of alternative remedy before the Court of Settlement and the veryfact that the Government did not care to file an affidavit could be held to besufficient for the purpose of disentitling the Government from claimingpossession and making a list including the appellant's property under theOrdinance.

Begum Lutfunessavs Bangladesh 42 DLR (AD) 86.

Article 102–

Writpetition against decision of Election Tribunal– There is no word of finalityattached to the decision of the Election Tribunal in the Rules. Even if therewas any, the jurisdiction of the High Court Division under Article 102 couldnot be limited by such words of finality.

MahmudulAlam Mantu vs Sanwar Hossain Talukder 42 DLR (AD) 211.

Article 102–

There beingno other forum provided by law for appeal and there being no other efficaciousremedy open to the aggrieved party against the order of the Election Tribunalacting under the Dhaka Municipal Corporation (Election of Commissioners) Rules,1983, the writ jurisdiction of the High Court Division was attracted. HighCourt Division was plainly wrong in rejecting the writ petition as notmaintainable. Matter remitted back to the High Court Division for disposal onmerit.

MahmudulAlam Mantu vs Sanwar Hossain Talukder 42 DLR (AD) 211.

Article 102–

Maintainabilityof writ petition–that there is no appeal provided against a decision can neverbe urged to exclude the writ jurisdiction of the High Court Division, rather itis all the more reason that the petitioner in such a case (of no remedy) cannotbe thrown out easily.

MahmudulAlam Mantu vs Sanwar Hossain Talukder 42 DLR (AD) 211.

Article 102–

In matter ofelection dispute writ forum is not the proper and adequate forum to be invokedand prerogative power of writ is not meant for deciding disputed questions offact.

It is notdesirable that a writ court should embark upon itself the investigation ofhighly disputed questions of fact more so where alternative efficacious andeffective remedy is provided by law.

Abdul MukitChowdhury vs The Chief Election Commissioner 41DLR57.

Article 102–

The purpose of Article 102 of the Constitutionis not to bypass or defeat the existing jurisdiction of a special forum createdby a special statute.

Apart fromthis principle, there is another aspect of this question that where statute hasprovided a special forum creating a special right and a special procedure forenforcement of such to right, it is not only incumbent upon the person seekingrelief to approach that special forum but also to follow the special procedureprovided and the High Court acting under Article 102 of the Constitution shouldnormally decline to exercise its prerogative power unless the special remedy soprovided by the special law before the special forum has already been exhausted: for it is not the purpose of Article 102 of the Constitution to defeat theexisting jurisdiction.

Abdul MukitChowdhury vs The Chief Election Commissioner 41 DLR 57.

Article 102–

The state ofACR is a disputed question of fact and the assessment thereof is a question ofobjective satisfaction by the Departmental Promotion Committee–In both mattersthere is little scope for interference in this jurisdiction.

Mirza MdAbdullah–Ar–Rabbani vs Trading Corporation of Bangladesh 42 DLR 258.

Article 102–

Alternativeremedy provided in the Customs Act and pleaded as a bar against writjurisdiction is no equally efficacious remedy.

Collector ofCustoms vs A Hannan 42 DLR (AD) 167.

Article 102–

We do notthink that the respondent could rightfully claim any benefit on the basis ofgeneral findings made in the documents (Annexure 'D' and 'E') after all thesemonths, particularly when he made no move after the District Election Officerhad refused to accept his nomination paper and further held– We do not thinkthat it was right and proper for the High Court Division to have directed theElection Commission to dispose of the application of the respondent again. Itis apparent from the facts noticed above that respondent missed the bus due toinertia and it is well known that delay not only defeats justice but in somecases it defeats rights also.

Abdul JabbarDakua vs Kanchan Ali Sikder 42 DLR (AD) 101.

Article 102–

Writpetition–Filing of suit and writ petition simultaneously for the same relief–The fact of filing of the suit, which was later dismissed, was not mentioned inthe writ petition– High Court Division summarily dismissed the writ petition asbeing not maintainable on the ground of suppression of facts. No rule wasissued.

AwladHossain vs Haji Moniruddin Ahmed 40 DLR 427.

Article 102–

The HighCourt on examination of the different provisions of the Ordinance includingsection 7 came to the finding that the section can give the appellant exactlythe same remedy which she was praying for in the writ petition, that the Courtof Settlement has been given the specific power to exclude the disputedproperty from the impugned list–when the Statute devised an alternative forumfor giving complete relief to the appellant, she could not invoke the writjurisdiction without exhausting the remedy provided for in the Ordinance–Thisview taken by the High Court Division is well in accord with the settledprinciple governing exercise of discretionary jurisdiction under Article 102 ofthe Constitution–When the law itself provides for a remedy which is to besought for in writ petition no interference with the impugned judgment iscalled for.

BegumLutfunnessa vs Bangladesh 42 DLR (AD) 86.

Article 102–

The HighCourt Division, in our opinion, could itself interfere, notwithstandinganything correctly observing that there was an alternative remedy under section7 of the Ordinance in view of the particular facts of the case.

BegumLutfunnessa vs Bangladesh 42 DLR (AD) 86.

Article 102–

When theMinistry of Home Affairs did not care to file an affidavit, it could be held tobe sufficient for the purpose of the present case disentitling the governmentfrom claiming possession and making a list including the appellant's propertyunder the Ordinance.

BegumLutfunnessa vs Bangladesh 42 DLR (AD) 86.

Article 102–

The petitionercannot invoke the writ jurisdiction at the first stage without exhausting theother remedy provided for in the Ordinance (LIV of 1985).

The Court ofSettlement has been given the specific power to exclude the disputed propertyfrom the list (a). The petitioner has been given a specific right to arguebefore the Court of Settlement that the building is not an abandoned property,that it was not vested in the Government or that right or interest in thebuilding has not been affected by the provisions of PO No. 16 of 1972. When thestatute has devised an alternative forum for giving complete relief to thepetitioner, we fail to see how the petitioner can invoke this jurisdiction atthe first stage without exhausting the remedy provided for in the Ordinance.

BegumLutfunnessa vs Secretary, Ministry of Works. & others 41 DLR 193.

Article 102–

In case ofimport of drugs and medicines under Wage Earners' Scheme, some specialprovision of realisation and remission has been provided in Chapter XIV of ExchangeControl Manual–Provisions of clause 15( vii) and (viii) of the Import Policy of1986–87 have no manner of application to the present case as the import inquestion is on Wage Earners' Fund. Respondent Nos. l and 2 have illegally heldup the issuance of clearance in respect of the legally imported drugs andmedicines of the petitioner.

GreenPharmacy vs Bangladesh 42 DLR 307.

Article 102–

Second showcause notice– In the second show cause notice respondents did not enclosetherewith a copy of the Enquiry Report. Enquiry Report shows the petitionerwas not found guilty of misconduct but guilty of commission of irregularities,not amounting· to misconduct. Mr Abdur Rab Chowdhury, however, has made out apoint that in serving a second show cause notice dated 4–6–86 Annexure E(1) therespondent did not enclose therewith a copy of the enquiry report and thereforethe petitioner was highly prejudiced in his second defence. In particular, hepoints out, the enquiry report (Annexure X to the affidavit in–opposition)shows that the enquiry officer did not find the petitioner guilty ofmisconduct, as alleged in the charge–sheet (Annexure D). The enquiry officerfound the petitioner guilty of commission of irregularities, not amounting tomisconduct.

Md Tarab Alivs Bangladesh Textile Mills Corporation 41DLR138.

Article 102–

In a summaryproceeding under Article 102 of the Constitution disputed question of factshould not be entertained nor recording of any finding of as to the same isdesirable. In the summary proceeding under Article 102 of the Constitution itis neither desirable nor advisable to enter into merit and record a finding asto a disputed question of fact.

This view ofours finds support from the case of Shahbuddin Iskandar vs Bangladesh ElectionCommission & others reported in 27 DLR 475, Amjad Hossain Howlader vsGovernment of Bangladesh and others reported in 27 DLR 373 wherein a largenumber of decisions of the Appellate Division and the High Court Division ofthe Supreme Court has been referred. All those cases lay down the well–knownprinciple that complicated question of fact should not be entertained in a WritJurisdiction and Writ Jurisdiction cannot be invoked, if any alternative remedyis available to this aggrieved party.

Md Nawab AliKhondker vs Md Aminuddin 41 DLR 254.

Article 102–

Impositionof customs duty on Bill of Entry–The petitioner cannot invoke the writjurisdiction to challenge the assessment of taxes by customs officers on hisconsigned goods of meltable and re–rollable scraps, not perishable goods,without exhausting the alternative remedies provided in the Customs Act.

TradeChannel vs Collector of Customs, Customs House, Chittagong 44 DLR 127.

Article 102–

Internalexercises of the Government not communicated to the concerned person are notenforceable. No legal right can be founded on the notings done by theGovernment and furnished in the Writ petition.

Bangladeshvs Dhaka Steel Works Ltd 45 DLR (AD) 70.

Article 102–

The court isto hold the balance between the State's need to prevent prejudicial activitiesand citizen's right to enjoy his personal liberty.

HabibaMahmud vs Bangladesh 45 DLR (AD) 89.

Article 102–

When courtexamines a confidential file relating to a detenu it should indicate, withoutdisclosing the material, that there are facts in the confidential file that arerelatable to the ground of detention.

HabibaMahmud vs Bangladesh 45 DLR (AD) 89.

Article 102–

Theliquidation of a Company registered under the Companies Act cannot bechallenged in writ jurisdiction when in the Company Court the liquidationproceeding itself is pending for disposal.

Abu Yousufvs Bangladesh 45 DLR (AD) 162.

Article 102–

Where apetitioner has no legal right he cannot maintain an application under Article102 of the Constitution. He is not also entitled to invoke the Article on theground of breach of terms of contract for which remedy lies in a properlyconstituted suit for damages.

NationalEngineers Ltd vs Director, Military Lands 44 DLR 144.

Article 102–

Mandamus ina matter invoking discretion whether can issue– The right to get approval torecognition as an educational institution is not absolute one but subject tothe discretion of the Government. The Government may exercise such discretioneither by according or withholding the approval. A writ in the nature ofmandamus can in no case be issued to compel the manner in which the discretionis to be exercised. In that view the contention that the Government is under anobligation to accord the approval in question cannot be sustained.

ABM QuabilAhmed vs Ministry of Health 44 DLR 385.

Article 102–

Writpetition– laches– laches and delay in taking Writ petition disentitles one tohave the remedy. The petitioners having not sought the relief immediately aftertheir grievance arose, they having acquiesced in the matter of requisition oftheir property back in 1969 they cannot be allowed now to claim the disputedland.

SarwarjanBhuiyan vs Bangladesh 44 DLR 447.

Article 102–

Labourmatter– Permission for prosecution of employer–Wrongful exercise of discretionand failure to perform statutory duty in accordance with law by the Director ofLabour in such matter can be challenged under the writ jurisdiction.

SM ShafiulAzam and others vs The Director of Labour and others 44 DLR 582.

Article 102–

The writpetition having been admitted and 2 years passed since admission, it would notbe proper to decline interference for giving relief to the petitioner in thematter of enlisting her property as abandoned property on the ground that thestatute has devised alternative forum for remedy.

Ali Bandi vsBangladesh and others 46 DLR 634.

Article 102–

A governmentservant punished with major penalty in a departmental proceeding can come tothe Supreme Court for judicial review under Article 44 of the Constitution readwith Article 102(1) for enforcing fundamental rights after exhaustingadministrative remedies including appeal and remedies before the AdministrativeTribunal and Administrative Appellate Tribunal. Case relied on is Sampad Kumarvs Union of India AIR 1987 (SC) 386.

SerajulIslam vs DG Food 43 DLR 237.

Article 102–

Refusal oftender work–No remedy under writ jurisdiction–Purchase Manual as referred to bythe bidder in support of his claim to get the tender work has no statutoryforce or backing inasmuch as there is no provision in the Petroleum Act, 1974for framing any Purchase Manual nor it has been framed thereunder or any otherlaw. Petrobangla has unfettered right to accept or reject any or all quotationswithout assigning any reason in terms of the provisions of the tender document.

ChevronLines vs Chairman BOGMC 43 DLR 218.

Article 102–

Impugnedorder becoming infructuous – Remedy for wrong already done Courts are andshould be reluctant to decide constitutional points merely as matters ofacademic importance. If however, the impugned order was a wrongful one there isnothing to prevent the petitioner from instituting a suit for damages.

GhyasSiddique vs Bangladesh 43 DLR 179.

Article 102–

Academicdiscipline–Scope of review in writ jurisdiction– The evaluation of academicattainment of a student being the sole function of the University and anyaction taken, prima facie, in accordance with the rules and regulations haslittle to be interfered by the dictum of the Court, especially, under the writjurisdiction. What materials the Discipline Board, working under the UniversityOrdinance, could find against the petitioner during the enquiry held in respectof the disputed answer scripts cannot be a subject of review in writjurisdiction. This is because the High Court Division cannot assume thefunction of any appellate authority over that of the Discipline Board.

Enamul Huqvs Dhaka University 43 DLR 507.

Article 102–

Toadjudicate whether the petitioner is a defaulter can be proved on recording ofevidence which does not come within the scope of Article 102 of theConstitution.

Abdul MamenBhuiyan vs 'Hazi Payez Ali Mia 43 DLR 97.

Article 102–

Administrativeauthority passing order without hearing the person being affected. Such orderwill be without jurisdiction. In this case the order of the Chief ElectionCommissioner passed at the instance of the petitioner for recounting of ballotswithout notifying the respondent who secured the highest number of votes waswholly without jurisdiction and void even if he had power to pass such anorder.

A Rouf Miavs Ministry of LGRD & Cooperatives 43 DLR 29.

Article 102–

It isdoubtful whether the impugned order relating to the Bank's claim is appealableand then in the writ petition the very vires of section 10A of the PDR Act hasbeen challenged, Writ jurisdiction is the proper jurisdiction for deciding suchconstitutional point.

MMEnterprise Limited, 224, Bara Maghbazar; Dhaka, represented by its Director,Syed Tazammul Hussain vs General Certificate Officer, Collectorate Building,Camilla and another 45 DLR407.

Article 102–

Contractualobligation– Writ jurisdiction– Ramna Cafeteria being a property of theGovernment under the PWD is not distinguishable from Government property likefisheries, etc. The Government is equally the owner of all of them which areleased out to the successful bidders according to the rules in exercise ofpowers rooted in statute. The contract between the parties was not an ordinarycontract between ordinary tenderer and buyer, rather the Government acted inthis case in the course of administration of the affairs of the Republic.

ShahadatHossain vs Executive Engineer, City PWD Division Dhaka and others 44 DLR 420.

Article 102–

"Personaggrieved"–Its meaning and dimension–In our Constitution the petitionerseeking enforcement of a fundamental right must be a person aggrieved. OurConstitution is not at pari materia with the Indian Constitution on this point.The decisions of the Indian jurisdiction on public interest litigation arehardly apt in our situation. The petitioner is not acting pro bona publico butin the interest of its members. The real question in this case is whether thepetitioner has the right to move the writ petition in a representativecapacity. The High Court Division has rightly relied upon the case of 29 DLR188 where the question has been answered in the negative. The petitioner mayrepresent the employers in the Wage Board but its locus standi to act on behalfof its members in an application under Article 102 of the Constitution is justnot there.

Bangladesh Sangbadpatra Parishad (BSP) represented by itsSecretary General Anwarul Islam vs The Government of the People's Republic ofBangladesh, represented by its Secretary, Ministry of Information and fourothers 43 DLR (AD) 126.

Article 102–

Contractualobligation – Writ jurisdiction– Ramna Cafeteria being a property of theGovernment under the PWD is not distinguishable from Government property likefisheries, etc. The Government is equally the owner of all of them which areleased out to the successful bidders according to the rules in exercise ofpowers rooted in statute. The contract between the parties was not an ordinarycontract between ordinary tenderer and buyer, rather the Government acted inthis case in the course of administration of the affairs of the Republic.

ShahadatHossain vs Executive Engineer 44 DLR 420.

Article 102–

Thepetitioner being a "person aggrieved" by enlistment of her house asabandoned property can maintain a writ petition irrespective of whether she hasother equally efficacious remedy or not.

SarwariBegum vs Bangladesh, represented by the Secretary, Ministry of Works,Government of the People's Republic of Bangladesh and others 45 DLR 571.

Article 102–

Question ofvoidability of a legislation and stay of election–For the reasons that he whoseeks equity must do equity and must come with clean hands at the earliestopportunity and that the petitioners slept over the matter for a considerableperiod of time and preferred to challenge the Act only after the promulgationof the Ordinance which has since been repealed and the election was knocking atthe door and all formalities thereof were observed, postponement of election atsuch a stage by an order of stay would put a clog in the way of democraticprocess of transition to Parliamentary system and that the petitioners failedto make out a prima facie case for ad interim stay and the balance of convenienceand inconvenience was also in favour of the respondents, and in that view,without any reference and comment as to the merit of the writ petition, prayerfor ad interim stay is refused and the matter be placed before the regularBench on the reopening of the Court for hearing of the substantive application.

Abdus SamadAzad, MP & others vs Bangladesh, through Secretary, Ministry of Law andJustice and others 43 DLR 607.

Article 102–

Local bodies–Their composition – During the long gap of time local government in variousforms and names were constituted by the authority of Martial Laws. Now that theprovisions of the Constitution are back all local bodies shall have to fulfillthe constitutional requirements. Upazila being not an administrative unit an essentialconstitutional requirement for the Upazila Parishad to be a local government isnot fulfilled. It is not also wholly an elected body. This Parishad not being alocal body under the Constitution its abolition violates no provision of theConstitution so as to attract the relief under Article 102 of the Constitution.

Kudrat–e–ElahiPanir vs Bangladesh 44 DLR (AD) 319.

Article 102–

Lease offishery–Cancellation of lease granted by Additional Deputy Commissionerwhether valid–As the petitioner had taken delivery of possession of the fisheryon initial payment of rent as per receipt on the basis of deed duly executed bythe ADC on behalf of the President of Bangladesh, the cancellation of the leaseby Additional Commissioner arbitrarily and its confirmation by any higherauthority are illegal.

NAKMSamabaya Samity vs Ministry of Land 45 DLR 1.

Article 102–

Writjurisdiction– Pure question of fact– Exercising extraordinary jurisdiction, theCourt will not enter into the question whether the University Authority came toa correct finding about copying by the student or the question of malafide asthis court is not an Appellate Authority. As the principle of natural justicehas not been violated and Rules in respect of examination of offences have notbeen violated, no illegality has been committed by the respondents.

ShahidunNabi vs University of Dhaka 45 DLR 20.

Article 102–

Guidelinesand policies laid down in circulars, memorandums, etc. are directory and cannotbe enforced through Court.

Dr. MdMonimul Huq vs Bangladesh 45 DLR 39.

Article 102–

Mandamus,when to issue– For a mandamus an aggrieved person must show that a legal righthas been taken away without lawful authority. Personal right arising out of acontract would not be the subject–matter of mandamus unless the authorityacting on a contract acted malafide or arbitrarily.

Shafiq Ahmedvs Chairman, BCIC 45 DLR 95.

Article 102–

Exercise ofexecutive power– An executive authority exercising a power must do it justlyand fairly. It is an inherent part of all powers. No provision for actingfairly need be super–added to any law.

Shafiq Ahmedvs Chairman, BCIC 45 DLR 95.

Article 102–

Administrativeaction– Judicial review– In judicial review of administrative action the writcourt does not decide a /is between the parties or declare a right as such butonly examines whether the executive action complained of can be sustained inlaw. This process is not in the nature of an appeal but against the decisionitself, the decision making process, and is judged in the touchstone of thedoctrine of ultra vires.

AgragamiEngineers Ltd vs Bangladesh Bank 45 DLR 134.

Article 102–

In electionmatter the writ court will not interfere in interlocutory proceeding or orderspassed by election authorities but when there is a flagrant violation of thelaw and the Constitution on the face of the record the court will certainlyinterfere in mandamus.

Abdul Matinvs Election Commissioner 45 DLR 220.

Article 102–

Evictionordered by Martial Law Authority–Direction to restore possession –the civilCourt, recognising the petitioners' tenancy right and possession, decreed theirsuit. So long as this judgment and decree stand the petitioners cannot beevicted except in due process of law. It did not appear that their land inquestion was requisitioned or acquired–their forcible eviction on the basis ofthe Sub–Zonal Martial Law Administrator's order dated 28.11.82, even withpromise of alternative land, is therefore illegal.

Sk ShahadatAli vs Deputy Commissioner 45 DLR 237.

Article 102–

Locus standi–In contract alleged violation would be examined if it is executed on the basisof a statutory power. A question of locus standi or sufficient interest of thepetitioner in the subject–matter is always a threshold question in mandamus.

AgragamiEngineers Ltd vs Bangladesh 45 DLR 134.

Article 102–

An executiveauthority exercising a power must exercise it justly, fairly and reasonably.This duty to act fairly is an integral part of all exercise of power and neednot be super added in the law. It shall be so even while acting on contract.

AgragamiEngineers Ltd vs Bangladesh Bank 45 DLR 134.

Article 102–

Reasonablenessof executive action– Mere submission of a tender document does not create a legalright for it to be accepted. The authority may accept a higher tender if theyhave reasons to do so and in public interest, and may refuse a lower tender,and are not always bound to give reasons for the same.

AgragamiEngineers Ltd vs Bangladesh Bank 45 DLR 134.

Article 102–

Forfeitureof book–Defect in the order is no ground for exercise of writ jurisdiction–Forenforcement of fundamental right and for cancellation of order, the Courtshould look to the equity and good conscience in passing the impugned order(forfeiting the book in question). When the book contains materials justifyingthe government's action, the impugned order cannot be struck down on the groundthat it does not mention the facts in support of the action.

BangladeshAnjuman–e–Ahmadiyya vs Bangladesh 45 DLR 185.

Article 102–

The right tohear is a personal right–the writ petitioner being not the author or publisherof the forfeited book is not entitled to prior notice asking him to show causeagainst the impugned order.

BangladeshAnjuman–eAhmadiyya vs Bangladesh 45 DLR 185.

Article 102–

A tenantinducted by the Government in a property treating it to be an abandonedproperty is neither a necessary party nor a proper party in a writ petitionfiled by the owner of the property to get back its possession.

Mohsin Kabirvs Bangladesh 45 DLR 301.

Article 102–

Locus standi–Wherea petitioner discloses performance of an act not permitted by law and that thesame should result in loss of some personal benefit, he is entitled to invokethe writ jurisdiction.

AKM MizanurRahman vs Chairman, CMC 45 DLR 331.

Article 102–

Locus standi–Theimpugned enquiry and the order were passed by the Government touching themanagement of the petitioner–society. So, it cannot be said that the society isnot aggrieved due to the dispute over the post of Chairperson.

Karika vsSecretary, LGRD 45 DLR 325.

Article 102–

Merely forthe reason that Nabarun Sangsad is a club recognised by the FootballFederation, an affiliated organisation of Bangladesh Sports Council under theBangladesh Sports Council Act, it does not become a body constituted by theGovernment to mean a local authority within the meaning of Article 102(2) (a)(ii) of the Constitution.

Shahabuddinvs Bangladesh 45 DLR 360.

Article 102–

The remedyof judicial review under Article 102 of the Constitution is not governed by anylaw of limitation. This is an extraordinary remedy and should be sought withall possible expedition.

Bangladeshvs Professor Golam Azam 46 DLR (AD) 192.

Article 102–

Decisionsnot taken by any person performing functions in connection with the affairs ofthe Republic or of a local authority cannot be called in question under Article102(2)(a)(ii) of the Constitution.

Shahabuddinvs Bangladesh 45 DLR 360.

Article 102–

The order oftermination from service with stigma is a punishment and amenable to writjurisdiction though an order of termination simpliciter is not.

Anil KrishnaMondol vs Chairman 45 DLR 367.

Article 102–

Members ofthe Defence Service of the Republic hold office during the pleasure of thePresident which is not subject to or controlled by any law or constitutionalprovision. They have no right in respect of their service to be enforcedthrough court of law.

Rear AdmiralAA Mustafa vs Bangladesh 45 DLR 395.

Constitution of Bangladesh, 1972 [Article 102] Part II

Constitutionof Bangladesh, 1972

Article 102–

Writjurisdiction cannot be taken recourse to for depriving a citizen of his legalright or to create impediment to his getting such right.

ManagingDirector Rupali Bank vs Chairman, First Labour Court 45 DLR 397.

Article 102–

Delay–For anaggrieved person to come before the Court under the writ jurisdiction nostatutory limitation is provided for as in a suit. The jurisdiction underArticle 102 of the Constitution is a jurisdiction in law and also in equity.The court thus, entertains a petition if the delay is explained to thesatisfaction of the Court and it would be explained and examined in the lightof the attending facts and circumstances of each case.

ProfessorGolam Azam vs Bangladesh 45 DLR 423.

Article 102–

Delay– In acase of inordinate delay the court is loath to exercise its writ jurisdictionwhich is meant for speedy remedy.

Yunus Mia vsMinistry of Public Works 45 DLR 498.

Article 102–

The courtcannot issue prerogative writ directing the Government to implement its policy.That is a matter for the executive Government.

Yunus Mia vsMinistry of Public Works 45 DLR 498.

Article 102–

In aproceeding before the prescribed authority for release of abandoned property,the aggrieved party is entitled to obtain certified copy of the relevant papersand accordingly the concerned Deputy Commissioner is directed to cause issue ofsuch copy.

SM NaimulHoque vs Deputy Commissioner 45 DLR 520.

Article 102–

Abandonedproperty– Enforcement of contractual right–The contract between the petitionerand the previous owner of the house enlisted as an abandoned property ispurely. a private contract not capable of enforcement under the writjurisdiction. The case of Buxly Paints reported in 31 DLR (AD) 266 held notapplicable as the facts are distinguishable.

ShamimaKhatoon and another vs Bangladesh 45 DLR 601.

Article 102–

The power toreview having not conferred any right on the petitioner for effective remedyagainst his illegal dismissal, the contention that he has not exhausted hisremedy for entitlement to seek remedy in writ jurisdiction is not tenable.

Nurul Huq vsSecretary, Rural Electrification Board & another 45 DLR 666.

Article 102–

High CourtDivision cannot entertain a prayer for relief on compassionate ground indisposing of a matter under writ jurisdiction.

Kazi ShafiulNasher vs Education Board of Jessore and ors. 45 DLR 619.

Article 102–

Writjurisdiction– Findings of fact made by the Labour Court could not be upset inwrit jurisdiction.

MD,Bangladesh Machine Tools Factory vs Chairman, 2nd Labour Court 44 DLR (AD) 272.

Article 102–

Writjurisdiction– Discretion– When discretion exercised by the High Court Divisionin deciding the maintainability of a writ petition is not done judicially, thequestion is found to have been wrongly decided.

Controllerof Examinations, University of Dhaka and others vs Mahinuddin 44 DLR (AD) 305.

Article 102–

High CourtDivision's order declaring the Syndicate's action void against examinees whodid not challenge it is not sustainable in law.

Controllerof Examination, University of Dhaka and others vs Mahinuddin 44 DLR (AD) 305.

Article 102–

Defect ofParty– The instant application is really in the interest of all the members ofTax Collecting Karmachari Samity which appears from the several averments ofthe writ application, if properly construed, and the writ application haspartaken a representative character. We hold that all the parties who are to beaffected by this writ application should also have been made parties. We aretherefore of the opinion that on this technical ground also, apart from themerit, the Rule has to fail.

Nurul Islamvs Bangladesh 46 DLR 46.

Article 102–

In order toget a rule of mandamus one must show that his claim is rooted in a statute orstatutory rule.

Nurul Islamvs Bangladesh 46 DLR 46.

Article 102–

A writproceeding relating to a civil matter is a civil proceeding, although the HighCourt Division's jurisdiction in such a proceeding is constitutionaljurisdiction of an original kind.

Theprinciples contained in the Code of Civil Procedure can suitably be applied tothe writ proceedings dealing with civil rights and, as such the provisions ofOrder IX rule 9 of the Code of Civil Procedure will be applicable to the writproceedings, otherwise we shall have to accept an illogical proposition thateven after filing a civil suit and allowing it to be dismissed for default asuitor shall have still a right to move the High Court Division in its writjurisdiction on the same facts and for the same relief although he is precludedfrom filing a fresh suit.

Abdul LatifHowlader vs Bangladesh Power Development Board 46 DLR 384.

Article 102–

Aggrievedperson– An aggrieved person has often been described as one against whom adecision has been pronounced illegally this would not include a person who hasbeen merely disappointed of a benefit which he might have received if someother order would have been made. This concept has since been enlarged toenable a person who has been denied even of an expectation created in the mindof the aggrieved person by the representation of the government functionarybecause of which the former changed his position to his disadvantage due to therepresentation (Ref. 21 DLR (SC) 225)

AKM Faruquevs Bangladesh 46 DLR 281.

Article 102–

As theElection Commission and others being the respondents did not raise any questionof locus standi of Bangladesh Environmental Lawyers' Association to take thewrit petition touching various facts of election campaign relating to officesof the Commissioners and Mayors of the Dhaka City Corporation, the question hasbeen kept open.

BangladeshEnvironmental Lawyers Association vs Election Commission 46 DLR 235.

Article 102–

Electionmatter– Recounting of ballot papers– Since the Election Tribunal hasjurisdiction to direct recounting of ballot papers and it has passed such anorder, on consideration of evidence, though not in detail, it cannot be saidthat the Tribunal acted illegally and/or with material irregularity in exerciseof its jurisdiction.

High CourtDivision in exercise of its writ jurisdiction can only interfere in a writ ofcertiorari when a subordinate Court or Tribunal acted without jurisdiction orfailed to exercise a jurisdiction vested in it or when it acted illegallyand/or with material irregularity in the exercise of its jurisdiction. Had the19 PWs not stated anything from which the Election Tribunal could have arrivedat the conclusion as it did, it could be said that it acted illegally and/orwith material irregularity in the exercise of its jurisdiction.

Redwan Ahmedvs Election Tribunal 46 DLR 248.

Article 102–

Since thepetitioner failed to allege malafide on proved facts there is no scope for theCourt to embark upon an inquiry thereon in exercise of writ jurisdiction.

SerajulIslam Thakur vs Bangladesh 46 DLR 319.

Article 102–

Though noperiod of limitation has been prescribed by law for relief under Article 102 ofthe Constitution, the aggrieved party seeking such relief must show duediligence.

Relying onthe principle laid down in the case of Standard Vacuum Oil Co vs The Trusteesof the Port of Chittagong reported in 13 DLR 804 and the case of AkhtaruddinKhan vs Province of East Pakistan reported in 15 DLR 1 we hold that neither theowners nor the petitioners who claim to be their successors– in–interest, everchallenged the requisition for the last 3 decades and for the first time. thepetitioners have awakened from slumber only to challenge the .notification forproposed allotment, Under such circumstances we are of the view that thepetitioners are themselves guilty of laches and hence are not entitled to therelief claimed.

SadequeuddinAhmed vs RAJUK 46 DLR 205.

Article 102–

AnAssociation is not a person aggrieved and cannot maintain a petition on behalfof its members. The writ petition at the instance of Bangladesh ElectricalAssociation is not maintainable.

BangladeshElectrical Association vs Bangladesh 46 DLR 221.

Article 102–

Members ofthe Defence Service– Constitutional Guarantee– Members of the Defence Servicehold office during the pleasure of the President which is not subject to anyconstitutional guarantee. They have no right in respect of their services to beenforced through a court of law. They can be retired,, removed or dismissedwithout assigning any reason.

SerajulIslam Thakur vs Bangladesh 46 DLR 319.

Article 102–

Restorationof writ petition– As the master of its own procedure, barring rules framed, theHigh Court Division in writ jurisdiction in appropriate cases can consider thecase of nonappearance of a party at the time of hearing of the writ petitionand restore the writ petition.

Moni Begumvs RAJUK 46 DLR (AD) 154.

Article 102–

Moni Begumand others vs Rajdhani Unnayan Kartripakha and others 46 DLR 154.

Article 102–

Even if theappeal under section 147 of the State Acquisition and Tenancy Act is notmaintainable, the stay order passed by the appellate authority cannot be setaside or vacated by the Ministry as the Additional Commissioner being theappellant authority was in seisin of the matter.

Haji FakrulAlam Munshi vs Bangladesh 46 DLR 583.

Article 102–

In the UnionParishads Ordinance the voter of any Union Parishad has not been given anystatutory right to question the election of the chairman and member of anyUnion Parishad. Right to vote and right to question election are statutoryrights.

YounusChokdar vs Election Commission and others 46 DLR 395.

Article 102–

Unless thelessee has violated any condition Government cannot arbitrarily cancel thelease.

SonaliFishermen Co–operative Society vs Bangladesh 46 DLR 402.

Article 102 –

Writpetition and suit–There is no bar in filing a writ petition after withdrawing asuit. It all depends upon the facts and circumstances of each case. But it isclear that in the present case the writ petitioner filed a suit basicallycontaining highly contentious and disputed question of fact of adjudication bya civil Court and it is not his case before the High Court Division in writthat his grievance can be met merely by looking at law on agreed facts, so thatthis pursuit of a suit is unnecessary. He came to lay before the writjurisdiction the same questions of fact which he earlier laid before the civilCourt for adjudication. The writ jurisdiction shall have been denied to himunder such circumstances.

ChairmanCivil Aviation Authority vs Kazi Abdur Rouf 46DLR(AD) 145.

Article 102–

Maintainabilityof writ petition– The writ petitioner as headmaster of the school will be theex–officio member secretary of its Managing Committee. The High Court Divisionshould have asked itself as to what interest the writ petitioner had inestablishing the character of the school. He did not say he was filing the writpetition pro bono publico. And how being a paid official, he can act in theinterest of the public? The writ petition itself was misconceived.

ChairmanCivil Aviation Authority vs Kazi Abdur Rouf 46 DLR (AD) 145.

Article 102–

The contractof sale of the house enlisted as abandoned property between the petitioner andits previous owner being purely a private contract was not capable ofenforcement in writ jurisdiction.

ShamimaKhatoon vs Bangladesh 46 DLR 511.

Article 102–

Beforepassing a judgment ex parte the Labour Court ought to have examined theemployee's papers to see whether his case was proved. The judgment having notshown this irreducible minimum of care is declared to have been passed withoutlawful authority.

ChittagongChemical Complex vs Chairman Labour Court 46 DLR (AD) 182.

Article 102–

That thesuit against the petitioner was barred by limitation and in excess of theCourt's jurisdiction are matters to be agitated in appeal and not under thewrit jurisdiction.

Zahirul Islamvs National Bank Ltd 46 DLR (AD) 191.

Article 102–

Inordinatedelay renders Writ Petition liable to be rejected in that the remedy throughsuch petition is to be sought without inordinate duly.

KM MahmudurRahman and others vs State 48 DLR 92.

Article 102–

Action takenby the Government regarding matter already before a Court for adjudication inwhich the Government is a party is an affront to a judicial proceeding and isan attempt to pre–empting a judgment not to be condoned in any way. The HighCourt Division has taken a mistaken view that the writ petition involveddisputed questions of fact.

SyedMohammad Salem Azam and others vs Secretary, Ministry of Works, Government ofBangladesh and others 47 DLR (AD) 38.

Article 102–

Actions ofUpazila Nirbahi Officer and the Upazila Magistrate in getting evicted a personfrom his tenanted house and removal of his belongings therefrom are highhandedaction on the part of public servants and are malafide, and declared to havebeen done without lawful authoity.

MuziburRahman Talukder vs AKM Musa and others 47 DLR 21.

Article 102–

Counter–claimof the defendant under provision of the Artha Rin Adalat Ain having beenentertained without jurisdiction, the writ petition is maintainable and thereis no question of availing of alternative remedy.

Agrani Bankvs Sultana Jute Mills Limited and others 47 DLR 37.

Article 102–

Any person,meaning of– The word 'any person' appearing in Article 102 of the Constitutionalso includes a Member of the Parliament, Respondent Nos. 3–5 being suchmembers are persons within the meaning of Article I 02 of the Constitution andthey are performing their functions in connection with the affairs of theRepublic, as such, the writ petition is maintainable as against them.

AnwarHossain Khan vs Speaker of Bangladesh Sangsad Bhavan and others 47 DLR 42.

Article 102–

Shorn oflegal cover the demand for 'Caretaker Government by the respondents and theirabstaining from Parliament Session without leave are activities for selfishends which is clearly against their oath of office. The demand so canvassed bythe respondent Nos.3–5 in order to justify their unabated absence fromParliament is wholly illegal and unconstitutional.

Anwar HassanKhan vs Speaker of Bangladesh Sangsad Bhavan 47 DLR 42.

Article 102–

Allowancesand other benefits received by the absentee members of the Parliament areillegal and unauthorised. Such receipts without leave of the Parliament isrecoverable by appropriate authority by the process of law.

AnwarHossain Khan vs Speaker of Bangladesh Sangsad Bhavan and others 47 DLR 42.

Article 102–

Thejurisdiction in the nature of certiorari is not so wide as to enable a writcourt to convert itself into a Court of appeal.

Manager,Jute Plastic Plant Commercial, Tarabo, Demra vs Chairman, Third Labour Court,and others 47 DLR 192.

Article 102–

The DefenceSavings Certificates were purchased by the petitioner from the Bank who actedas the agent on behalf of the Government and, as such, the Bank is under legalobligation to make payment according to the terms mentioned in the saidcertificates on presentation before the Bank after those were matured.

Abdus Salamvs Manager, Agrani Bank and others 47 DLR 175.

Article 102–

When theParliament omitted the application of section 5 Limitation Act in the matter ofappeal under the Special Powers Act, the petitioner should not be allowed toinvoke in a circuitous way the high prerogative discretionary jurisdiction ofArticle 102 of the Constitution. The citation of 46 DLR 175 is misconceived.

Bangladeshvs Sessions Judge and Special Tribunal No I Chittagong 47 DLR 315.

Article 102–

The lawfulorder of the government granting lease in favour of the petitioner has createda vested right in the petitioner in the disputed fisheries.

Abdus Salam,Managing Director GP & FIC District Sunamganj vs Additional DeputyCommissioner (Revenue) Sunamganj and others 47 DLR 269.

Article 102–

Thepetitioner's land is situated in the 'core area' of Bhaowal National Park –hence there is no illegality in the notice issued to him imposing restrictionon his making of permanent construction which is detrimental to the congenialatmosphere of the Park.

Captain AMuzaffar vs Bangladesh and others 47 DLR 334.

Article 102–

Writjurisdiction, scope of Article 102 of our Constitution because of theexpression a "person aggrieved" and expression "enforcement ofany fundamental rights conferred by Part III of this Constitution has narroweddown the scope of writ jurisdiction unlike that of India.

Raufique(Md) Hossain vs Speaker, Bangladesh Parliament and others 47 DLR 361.

Article 102–

The judgmentpassed following cognizance taken by the Special Martial Law Court withouthaving jurisdiction is coram non–judice and malafide and hence liable to bequashed.

MuhammadUllah (Stenographer) vs Secretary, Ministry of Home Affairs, Government of thePeople's Republic of Bangladesh, Secretariat Building, and others 47 DLR 355.

Article 102–

WritJurisdiction–Limits of interference with findings of fact– The High CourtDivision was not a Court of appeal required to make determination of facts onits own. It could interfere with the findings of a tribunal of fact under itsextraordinary jurisdiction under Article 102 only if it could be shown that thetribunal had acted without jurisdiction or made any finding upon no evidence orwithout considering any material evidence/facts causing prejudice to thecomplaining party or that it had acted malafide or in violation of anyprinciple of natural justice.

Governmentof Bangladesh vs Md Jalil and others 48 DLR (AD) 10.

Article 102–

WritPetition maintainability– Writ petition cannot be resisted on the ground ofcancellation of a commercial contract when the community centre cannot be examinedin a summary proceeding under the writ jurisdiction.

GalamMurtaza Bhuiyan and others vs Bangladesh and others 48 DLR (AD) 47.

Article 102–

Terms andconditions of such a contract are merged into a licence granted in exercise ofstatutory power.

BangladeshTelecom (Pvt) Ltd vs Bangladesh T&T Board & others 48 DLR (AD) 20.

Article 102–

Writpetition– Locus standi+The respondent having raised no objection as to theDirector's competence to reply on behalf of his company, his locus standi to preferthe writ petition could not be questioned.

BangladeshTelecom (Pvt) Ltd vs Bangladesh T&T Board & others 48 DLR (AD) 20.

Article 102–

WritPetition–Alternative remedy– The Article provides that if there is no otherequally efficacious remedy "provided by law" then the writjurisdiction of the High Court Division may be invoked. "Provided byLaw" means a remedy provided in the statute in invocation of which theimpugned order was passed.

BangladeshTelecom (Pvt) Ltd vs Bangladesh T&T Board & others 48 DLR (AD) 20.

Article 102–

Writpetition–Maintainability – The writ petition cannot be said to be notmaintainable on introduction of a fresh plea highlighting facts not agitated inthe High Court Division and making them appear to be disputed question of factfor the first time in this Court.

BangladeshTelecom (Pvt) Ltd vs Bangladesh T&T Board & others 48 DLR (AD) 20.

Article 102–

WritPetition–Pleading– The affidavit having not pleaded estoppel, no submissioncould be entertained on the point at appellate stage.

BangladeshTelecom (Pvt) Ltd vs Bangladesh T&T Board & others 48 DLR (AD) 20.

Article 102–

Grievancearising out of a Government decision as to selection of a site for constructionof a new Union Parishad office–cum–

Article 102–

It is onlywhen a provision for appeal in a statute is attended with an inviolable and non–relaxablecondition of payment of fine or extra duty in full that it can be said that thepetitioner had no equally efficacious remedy.

MohammadBrothers vs Collector of Customs and another 48 DLR (AD) 58.

Article 102 –

High CourtDivision in exercise of its writ jurisdiction cannot sit as a Court of Appealover the judgment of the Court of Settlement for re–settling questions of fact.

MostafaKamal (Md) vs First Court of Settlement and others 48 DLR (AD) 61.

Article 102–

TheGovernment having itself decided to remove the anomaly in the matter ofabsorption of teachers like the respondent in the nationalized colleges and itnever having been contended that the Government changed its decision for anygood reason, the Court will be justified in holding that the Government isrequired by law to implement its own decision.

Bangladeshvs AHM Amir Hossain 48 DLR (AD) 75.

Article 102–

In electionmatters the jurisdiction of the High Court Division cannot be invoked underArticle 102 of the Constitution except on a very limited ground of totalabsence of jurisdiction (coram non–judice) or malice in law for the purpose ofinterfering with any step taken in the election process.

MahmudulHaque (Md) vs Md Hedayetullah and others 48 DLR (AD) 128.

Article 102–

Inter–ministerial/divisionalcommunications made in the process of reaching a decision, uncommunicated tothe affected persons, do not create a legal right in their favour.

NationalBoard of Revenue vs Nasrin Banu and 5 others 48 DLR (AD) 171.

Article 102–

When thepetitioners' cases fail on interpretation of section 95A and on disputedquestion of facts it is not necessary to express opinion on alternative remedyfor the purpose of deciding maintainability of the Writ petition.

Rup CharanDas and others vs Bangladesh and others 48 DLR 94.

Article 102–

Petitioners'grievance as against the allotment of current charge of the office of ExecutiveEngineer to the respondent Nos.4–8 at the moment is not sustainable in law asallotment of current charge is not a promotion and the same have not createdany right in favour of the said respondents.

MunirHossain and others vs Dhaka Water Supply and Sewerage Authority & others 48DLR 121.

Article 102–

Prayer forreferring the writ petition challenging the holding of the office of a judgeand that of the Chief Election Commissioner by the same person at the same timeto be heard by a larger Bench can only be allowed when the court is convincedthat it is so required.

Saleem Ullahvs Md Abdur Rauf Chief Election Commissioner of Bangladesh, Election Commissionand others 48 DLR 144.

Article 102–

Writjurisdiction– alternative remedy– In spite of an alternative statutory remedy,an aggrieved person may take recourse to Article 102 of the Constitution wherethe vires of a statute or a statutory provision is challenged, where thealternative remedy is not efficacious or adequate, and, where the wrongcomplained of is so inextricably mixed up that the High Court Division may, forthe prevention of public injury and the vindication of public justice, examinethat complaint. In the circumstances of the present cases, the appeal was notadequate remedy and these writ petitions are maintainable.

AhmedHussain and 39 others vs Collector of Customs, Customs House Ctg, and others 48DLR 347.

Article 102–

A thirdparty Mis Hira Enterprise, who is not a party to the petition, had acquiredvaluable right by taking lease of the fishery for 5 years from 1–8–1993 beforethe Rule was issued. Hence the petitioner cannot get any relief in this Ruleagainst the interest of a third party which will not be binding on him and willnot have any effect.

MojiburRahman (Md) and another vs Adamjee Jute Mills Ltd and others 48 DLR 398.

Article 102–

No writpetition lies against the officer of a company as he was not performingfunctions in connection with the affairs of the Republic or a Local Authority.

Abdur Rahman(Md) vs Secretary, Ministry of Industies, People's Republic of Bangladesh andothers 48 DLR 431.

Article 102–

In action orfailure of the respondent to appoint judges of the Supreme Court does not makethe petitioner an aggrieved person within the meaning of Article 102 as shocksustained by him for such omission on the part of respondent is notinfringement or either any constitutional or legal right.

Dr MohiuddinFarooque vs Bangladesh, represented by the Secretary, Ministry of Law, Justiceand Parliamentary Affairs, Government of the People's Republic of Bangladesh 48DLR 433.

Article 102–

Petitionersought enforcement of fundamental right in public interest. Respondents do notchallenge such claim of the petitioner. It needs them no consideration whetherpetitioner is entitled to the enforcement of such fundamental right in his ownbehalf or in public interest by marketing of such foods.

Dr MohiuddinFarooque vs Bangladesh, represented by the Secretary, Ministry of Law, Justiceand Parliamentary Affairs, Government of the People's Republic of Bangladesh 48DLR 438.

Article 102–

Practicalityof conditions enumerated under this provision is matter of assessment of factby the Election Commission which cannot be enquired into in Writ jurisdiction.

Abul Hashim(Md) vs Election Commission of Bangladesh 48 DLR 490.

Article 102–

Writpetition meant for speedy remedy is rejected on the ground of inordinate delayin the absence of cogent reason to condone the delay.

People'sRepublic of Bangladesh vs Chairman, Court of Settlement of Bangladesh Dhaka andanother 48 DLR 502.

Article 102–

A double–standardtreatment meted out to different employees by the executive Government isdeprecated.

Abdur Rahmanand 6 others vs Government of Bangladesh and others 48 DLR 538.

Article 102–

Members ofthe Election Committee of the National Society having not performed anyfunction in connection with the affairs of the Republic or. of a LocalAuthority writ cannot issue against them in relation to the notification issuedby the respondent No I though he is an Additional Registrar of the Co–operativeSociety.

Jiban KumarBarman vs M Abdul Hye, Chairman of the Election Committee and others 48 DLR569.

Article 102–

Writ doesnot lie agaisnt the members of Election Committee of a Cooperative Society andas such the instant Rules at the instance of the petitioner are notmaintainable. In view of the above finding we need not enter into merit of theRules.

Jiban KumarBarman vs M Abdul Hye, Chairman of the Election Committee and others 48 DLR569.

Article 102–

Writ may beissued on the officers of the Corporation as they perform functions inconnection with local authority. The affairs of the Corporation which is a writwill lie against them though the Corporation has not been impleaded.

Abdul HaqueSikder vs Divisional Manager (Fertiliser) Bangladesh Agricultural DevelopmentCorporation (BADC) and others 48 DLR 574.

Article 102–

Writpetition at the instance of a worker is not maintainable as he has equallyefficacious remedy before the Labour Court.

Abdul HaqueSikder vs Divisional Manager (Fertiliser) Bangladesh Agricultural DevelomentCorporation (BADC) and others 48 DLR 574.

Article 102–

Powers ofHigh Court Division to issue certain orders and directions–Dimension of suchpowers–Article I 02 of our Constitution is not an isolated island standingabove or beyond the sea–level of the other provisions of the Constitution. Itis a part of the over–all scheme, objectives and purposes of the Constitution.And its interpretation is inextricably linked with the (i) emergence ofBangladesh and framing of its Constitution. (ii) the Preamble and Article 7,(iii) Fundamental Principles of State Policy, (iv) Fundamental Rights and (v)the other provisions of the Constituion.

Dr MohiuddinF arooque vs Bangladesh, represented by the Secretary, Ministry of Irrigation,Water Resources and Flood Control and others 49 DLR (AD)1.

Article 102–

The HighCourt Division was not a Court of appeal required to make determination offacts on its own. It could interfere with the findings of a tribunal of factunder Article 102 only if it could be shown that the tribunal had acted withoutjurisdiction or made any finding upon no evidence or without considering anymaterial evidence/facts causing prejudice to the complaining party or that ithad acted malafide or in violation of any principle of natural justice.

Governmentof Bangladesh, represented by the Secretary, Ministry of Works vs Md Jalil& others 49 DLR (AD) 26.

Article 102–

Services ofthe writ petitioners are attached with the institution, not with the place ofits functioning and as such withholding of their legal entitlements duringcontroversy as to the institution's location falls on them by way of penaltywhich cannot be legally imposed.

Secretary, Ministryof Education, Government of the People's Republic of Bangladesh and others vsMd Anwar Hossain and others 49 DLR (AD) 87

Article 102–

In the stateof evidence on record the materials recovered from the appellant do not attractthe mischief of the Arms Act and the alleged offence could not have been takencognisance of. As such the whole trial and the order of conviction and sentencewere without jurisdiction.

Nesar Ahmed@ Babul vs Government of Bangladesh represented by the Deputy Commissioner,Noakhali, and another 49 DLR (AD) 111.

Article 102–

As theappellant had no reasonable opportunity to avail of the alternative remedy, hiswrit petition was fully maintainable.

Nesar Ahmed@ Babul vs Government of Bangladesh represented by the Deputy Commissioner,Noakhali, and another 49 DLR (AD) 111.

Article 102–

Alternativeremedy– Writ jurisdiction– The presence of an alternative remedy does not debarthe exercise of jurisdiction by the High Court Division under Article 102 ofthe Constitution when the facts and circumstances of a particular case are suchthat the accused person had no reasonable opportunity to avail of the statutoryremedy under the Special Powers Act.

Nesar Ahmed@ Babul vs Government of Bangladesh represented by the Deputy Commissioner, Noakhali,and another 49 DLR (AD) 111.

Article 102–

"Anyperson aggrieved" – Interpreting the words "any personaggrieved" meaning only and exclusively individuals and excluding theconsideration of people as a collective and consolidated personality will be astand taken against the Constitution.

Dr MohiuddinFarooque vs Bangladesh, represented by the Secretary, Ministry of Irrigation,Water Resources and Flood Control 49 DLR (AD) 1.

Article 102–

The mannerin which the learned Judges considered the materials on record is in fact themanner in which a court of appeal disposes of an appeal. The learned judges ofthe High Court Division exceeded their jurisdiction while exercising theirpower under certiorari to interfere with the judgment of an inferior tribunal.

Governmentof Bangladesh vs Ashraf Ali @ Ashraf Ali and another 49 DLR (AD) 161.

Article 102–

The writCourt will not examine and weigh the aggrieved person's case on merit as anappellate Court but would only ensure that he was given a fair deal by theauthority in accordance with law.

Governmentof Bangladesh and others vs Md Tajul Islam 49 DLR (AD) 177.

Article 102–

Thelegislature knows better where regulation is needed most. Legislative judgmentrelating to social and economic policies must not be interfered with unless itis palpably arbitrary.

NasreenFatema and 20 others vs Bangladesh and others 49 DLR 542.

Article 102–

The Court ofSettlement erred in law in passing judgment without properly considering thelegal effect of material pieces of evidence and the same has materiallyaffected the impugned decision.

Lalima Begumand another vs Chairman, Court of Settlement, I st Court Dhaka and another 49DLR 325.

Article 102–

WritPetition–Intent and spirit is to be gathered– There may be some wrongmentioning of the Article in the cause title of the application and there maybe some misconceived prayer in the prayer portion of the writ petition, yet thespirit, substance and necessary intent of the writ petition is to be gatheredfrom reading the writ petition as a whole.

Abu BakkarSiddique vs Justice Shahabuddin Ahmed and others 49 DLR 1.

Article 102–

Ouster ofJurisdiction –Under Article 102 of the Constitution the Court is competent tosee as to whether there was actual ouster of jurisdiction or not and also as towhat is the extent and scope of such ouster clause. As the Indemnity Ordinance,1975, is found void ab initio being ultra vires the Constitution, this Courthas got jurisdiction to consider the constitutionality of such a law.

ShahriarRashid Khan vs Bangladesh, represented by the Secretary, Ministry of Law andParliamentary Affairs and others 49 DLR 133.

Article 102–

Jurisdiction–Any act or thing done or any trial taken place even under Martial LawProclamation, Regulation or Order, can be challenged under Article I 02 of theConstitution if it is done or made without jurisdiction, coram non–judice ormalafide.

ShahriarRashid Khan vs Bangladesh, represented by the Secretary, Ministry of Law and ParliamentaryAffairs and others 49 DLR 133.

Article 102–

WritJurisdiction–Alternative remedy–The rule as to alternative remedy is not a ruleof law but a rule by which court regulates its own proceeding and does notgenerally entertain any such proceeding which can be more appropriatelyinvestigated in an alternative forum but in a case where the order isabsolutely without jurisdiction and does not involve any investigation of factsor consideration of evidence the necessary relief can be more appropriately andexpeditiously given in writ jurisdiction.

TasminaChowdhury and 12 others vs Deputy Commissioner, Dhaka and others 49 DLR 29.

Article 102–

WritPetition–Maintainability –Specifically the Bangladesh Biman Corporation assuch was not made a party, but the Managing Director is, in fact, representingthe Bangladesh Biman Corporation. So this technical objection will notfrustrate the purpose of this writ petition.

MRashiduzzaman vs Government of Bangladesh and others 49 DLR 43.

Article 102–

A proceedingin the Writ jurisdiction is more in the nature of a summary proceeding in whichexamination of disputed questions of fact of a complicated nature is not as ageneral rule undertaken nor investigation of title to property made.

TasminaChowdhury and 12 others vs Deputy Commissioner, Dhaka and others 49 DLR 29.

Constitution of Bangladesh, 1972 [Article 102] Part III

Constitutionof Bangladesh, 1972

Article 102–

Ordinarilythe High Court Division under Article l 02 of the Constitution will notinterfere where there is equally effective and efficacious remedy available toa petitioner. Yet the existence of another remedy is not in every case a barto. the exercise of powers of the High Court under Article 102 of theConstitution and the court can interfere if the circumstances demand suchinterference.

Jobon Naharand others vs Bangladesh, through the Secretary, Ministry of Housing and PublicWorks Department, Government of the People's Republic of Bangladesh and others49 DLR 108.

Article 102–

The right toenforce a fundamental right is another fundamental right which gives the petitionerright to move. this court even though his application was rejected bySettlement Court on ground of limitation.

Jobon Naharand others vs Bangladesh, through the Secretary, Ministry of Housing and PublicWorks Department, Government of the People's Republic of Bangladesh and others49 DLR 108.

Article 102–

Since theterms and conditions of service of the Government Pleaders and PublicProsecutors have not been laid down by any statutory provisions, the seeking ofrelief under writ jurisdiction regarding relieving of the present petitionerfrom the office of the Government Pleader is not called for and as such thiswrit petition does not lie.

KaziMokhlesur Rahman vs Secretary, Ministry of Law, Justice and ParliamentaryAffairs, Government of the People's Republic of Bangladesh and others 49 DLR126.

Article 102–

When all theterms and conditions are fulfilled and lease deed is registered the legal heirsof the Jessee are entitled to get their names mutated in the record of rights.

Shawqat AraSalahuddin and others vs Government of the People's Republic of Bangladesh andothers 49 DLR 467.

Article 102–

Since noallegation of any misconduct has been alleged in the impugned order, it cannotbe said that the order of removal is arbitrary or malafide or the principle ofnatural justice has been violated before passing the impugned order.

KaziMokhlesur Rahman vs Secretary, Ministry of Law, Justice and ParliamentaryAffairs, Government of the People's Republic of Bangladesh and others 49 DLR 126.

Article 102–

Governmentis the client and Government Pleaders and the Public Prosecutors are thelawyers. It is the discretion of the client to keep or change a lawyeraccording to its own desire.

KaziMokhlesur Rahman vs Secretary, Ministry of Law, Justice and ParliamentaryAffairs, Government of the People's Republic of Bangladesh and others 49 DLR126.

Article 102–

In some ofthe writ petitions Rule was also issued to show cause why section 4 of the Anti–CorruptionAct, 1957 should not be declared ultra vires of the Constitution but noargument on that score had been addressed and the same was not pressed. Sincethe Rule on that ground was not pressed, the same need not be deal with.

MustafizurRahman and 3 others vs DG, Anti–Corruption and others 49 DLR 599.

Article 102–

In the writpetition itself the impugned order was not attacked on the ground that fmdingof facts are not based on material evidence. This court will interfere with thefindings of the appellate authority only if the findings of facts are not basedon material evidence.

MinarulIslam (Md) vs Bangladesh and others 49 DLR 615.

Article 102–

Impositionof emergency and suspension of fundamental rights for a certain period does notmean that an Act or Ordinance passed in that period cannot be declared ultravires of the Constitution. It was merely the enforcement of fundamental rightsthrough court that remained suspended for a limited period, and nothing more.

ShahriarRashid Khan vs Bangladesh, represented by the Secretary, Ministry of Law andParliamentary Affairs and others 49 DLR 133.

Article 102–

In spite ofouster clause in law, this Court has got authority to make judicial scrutinyand review under its constitutional jurisdiction, if the law is passed or thething is done without jurisdiction, coram–non–judice or malafide.

ShahriarRashid Khan vs Bangladesh, represented by the Secretary, Ministry of Law andParliamentary Affairs and others 49 DLR 133.

Article 102–

A vestedright was created in favour of the petitioner to the post of Director Generalof Bangladesh Shilpakala Academy and such a right cannot be taken away bycancelling his contractual service as Principal of Music College as he joinedthe College keeping his lien to his service as the Director General. Since hislien was kept intact and it was never cancelled, he ought to have been allowedto join his former post as Director General of Bangladesh Shilpakala Academy.

Azad Rahmanvs Government of the People's Republic of Bangladesh and others 49 DLR 298.

Article 102–

It is truethe petitioner could have filed an application under section 561 A of the CrPCfor quashment of proceedings, but when the impugned proceeding is the outcomeof malafide intention the same is declared to have been initiated withoutlawful authority under the Court's writ jurisdiction.

Manzur Kaderand another vs Government of the People's Republic of Bangladesh, representedby the Secretary, Ministary of Home Affairs and others 49 DLR 237.

Article 102–

Petitioneris entitled to challenge the inclusion of her house in the list of abandonedbuildings by way of the Court's writ jurisdiction in spite of dismissal of herapplication by the Court of Settlement on the ground of limitation.

SalehaBegum, wife of late Altaf Hossain vs Chairman, First Court of Settlement andanother 49 DLR 243.

Article 102–

There ishardly any scope to apply the principle of equity when terms and conditions oftender documents are there to provide for legal and proper dispensation.

Ataur Rahmanvs Secretary, Ministry of Communication, Roads and Railway Division,Bangladesh and others 49 DLR 331.

Article 102–

When thereviewing authority acted in excess of his power conferred under Regulation3(4) of the Martial Law Regulation No. I of 1982 the impugned order passed inreviewing by the CMLA converting the judgment of acquittal into one ofconviction is without any lawful authority.

Abdur Rahmanvs Government of the People's Republic of Bangladesh represented by theSecretry Ministary of Home Affairs, and others 49 DLR 344.

Article 102–

Where anorder of complaint suffers from inherent lack of jurisdiction, or raisesquestion of law and interpretation of a statute, non–compliance with thealternative remedy of appeal will not be a bar to a writ petition.

WahidullahMajumder vs Bangladesh and others 49DLR 400.

Article 102–

A letterfrom a Secretary of a Ministry of the Government is not a legal instrumentcreating legal rights for the petitioners over an unutilised portion of theland acquired long ago. It only lays down the policy of the Government withoutany force of law and without creating any legal right.

KaziAftabuddin and others vs Bangladesh and others 49 DLR 422.

Article 102–

Whileinvoking the extraordinary jurisdiction of the High Court the petitioner isrequired to be vigilant and not indolent. Inordinate delay is a good ground forrejecting a writ petition.

Abdul Hakimvs Government of Bangladesh and others 49 DLR 438.

Article 102–

When exportregistration certificate is cancelled by the Controller of Imports and Exportsunder section 4(g) of the Imports and Exports Order on the direction of theMinistry of Commerce without application of his independent mind applicationundere Article 102 is maintainable in the circumstances despite alternativeefficacious remedy.

Acqua FoodsLimited and another vs Controller of Imports and Exports and others 49 DLR 498.

Article 102–

Therespondent in making the demand for payment being short–levied customs duty ascondition precedent for renewal of the licence of the bonded ware–house actedunjustifiably in that renewal of licence was in no way connected with thepayment of the disputed amount claimed as short–levied customs duty.

Rahima FoodCorporation vs Deputy Collector of Customs and others 49 DLR 510.

Article 102–

Demands fromthe petitioner on account of short–levy of customs duty made without servingshow cause notice as to why the amount short–levied at the time of assessmentof customs duty should not be made is not sustainable in law.

Rahima FoodCorporation vs Deputy Collector of Customs and others 49 DLR 510.

Article 102–

Thesubmission that the Rule is liable to be discharged as the petitioner had notexhausted the alternative forum, that is statutory appeal, would have receivedconsideration had the demand been made on substantial compliance of theprovision of the Act.

Rahima FoodCorporation vs Deputy Collector of Customs and others 49 DLR 510.

Article 102–

The SessionJudge· having found the victim girl to be a minor, she is being kept in custodyin the name of judicial custody illegally and entitled to be handed over to thecustody of her father.

Tapati Ranivs State represented by the Deputy Commissioner, Jamalpur 49 DLR 566.

Article 102–

InterMinisterial Communications are merely policy guidelines in respect of certainmatters concerning the business of the Government. These do not create anylegal right in favour of. any person to ask for return of unutilised landvalidly acquired under the law.

Abul Basher being dead his heir Hosne–Ara Begumand others vs Bangladesh and others 50 DLR (AD) 11.

Article 102–

There is astrong need to protect the public servant from the propensity of politicisationof administration by a party Government by keeping the marks for interview asminimum as possible so that the scope of arbitrariness and the possibility ofpick and choose are absolutely minimised.

Bangladesh,represented by the Secretary, Ministry of Establishment vs Shafiuddin Ahmed and2 others 50 DLR (AD) 27.

Article 102–

Normally theminor children should be with their mother as long as she does not earn anydisqualification for such custody and if there is a breach of this normal orderbrought about by a unilateral act of the father or anybody on his behalf, theaggrieved mother has the right to move the High Court Division under Article I02 of the Constitution for immediate custody of the children which may beordered in the interest and for the welfare of the children.

Abdul Jaliland others vs Sharon Laity Begum Jalil 50 DLR (AD) 55.

Article 102–

The writpetitioner appears to have the prima facie liability to pay supplementaryduties as imposed in the Finance Act, 1996, because the disputed increase insupplementary duty is the issue, not the duty itself.

Commissionerof Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD 129.

Article 102–

Lest whatappears to be illegal on first impression turns out to be legal after all, aBank Guarantee is a sufficient protection to a taxing authority's questionabledemand.

Commissionerof Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129.

Article 102–

The writ–petitioner'sclaim of assessment on invoice value and not on Yellow Book Value is a matterof interpretation and not a question of jurisdiction to assess customs duties.So the writ petitioner has to pay Yellow Book Value before his goods arereleased.

Commissionerof Customs, Chittagong vs Giasuddin Chowdhury 50 DLR (AD) 129.

Article 102–

The writpetitioner has not been able to make out a case that its own private interestis so overwhelming that public interest should be subordinated thereto.

FrankShipping Limited vs Government of the People's Republic of Bangladesh andothers 50 DLR (AD) 140.

Article 102–

If an orderof dismissal was wrongful and the person was treated to be in service by virtueof a declaration given then he should also be given by way of consequentialrelief the salary for the period as if he was actually rendering service. Theseare matters which need evidence to be taken and surely cannot be granted in thesummary jurisdiction under Article 102.

Bangladesh,represented by Secretary, Establishment Division and others vs MahbubuddinAhmed 50 DLR (AD) 154.

Article 102–

There beingno order that the Tribunal had reason to believe that the petitioner hadabsconded or was concealing himself and there was no immediate prospect ofarresting him he has made out a case that he had no opportunity of availing thealternative remedy provided under section 30 of the Act. Mobarak Ali aliasMobarak Ali Mondal vs People's Republic of Bangladesh, and others 50 DLR 10.

Article 102–The presence of alternative remedy does not debar the exercise of jurisdictionby the High Court Division under Article 102 of the Constitution when the factsand circumstances of a particular case are such that the accused person had noreasonable opportunity to avail of the statutory remedy.

Mobarak Alialias Mobarak Ali Mondal vs People's Republic of Bangladesh, and others 50 DLR10.

Article 102–

AdministrativeCircular is not any rule or by–law or regulation which requires publication inthe official gazette. The impugned Circular not being rule or regulation butmerely an Administrative Circular for internal guidance of the promotioncommittee to assess the merit of the candidates for promotion the same is anordinary document validity of which can be challenged before the AdministrativeTribunal.

JunnurRahman vs Bangladesh Shilpa Rin Sangstha (BSRS) and others 50 DLR 39.

Article 102–

Judicialreview of the administrative action should be made where there is necessity forjudicial action and obligation. Such action must be taken in public interest.The purpose of judicial review is to ensure that the citizen of the countryreceives protection of law and the administrative action comply with the normsof procedure set for it by laws of the land.

Dr MohiuddinFarooque vs Bangladesh, and others 50 DLR 84.

Article 102–

Verificationof the final nomination letters issued by the Establishment Division shows theinclusion of the name of the writ petitioner and as such he was finallynominated as ex–Mujibnagar employee who is entitled to be employed.

Abdul Hakimvs Bangladesh & others 50 DLR J 37.

Article 102–

The Dean ofthe Faculty of Medicine being the officer of the University within the meaningof Article 52 of President's Order 11 of 1973, the remedy provided underArticle 52 is equally efficacious as it provides for enquiry by a Commissionand as such the writ petition is not maintainable.

Dr ProfessorMA Hadi vs Bangladesh and others 50 DLR 218.

Article 102–

When anoffence alleged and conviction thereunder on the facts and circumstances do notcome within the mischief of that offence, the trial is vitiated and the accusedperson is entitled to get benefit of that by invoking writ jurisdiction.

Sentu vsGovernment of Bangladesh and others 50 DLR 220.

Article 102–

In order tosave the country from being deprived of getting legal and usual customs dutieson the re–conditioned cars and vehicles from abroad and also in order toprotect the interest of the country from the hands of unscrupulous anddishonest businessmen the Government had to take resort to the policy ofimposing customs duties on the basis of Yellow Book Value. It cannot be saidthat such an action is illegal and without jurisdiction, rather we hold thatthis is for the greater interest of the country.

NasiruddinAhmed vs Commissioner of Customs, Chittagong and others 50 DLR 232.

Article 102–

Debotterproperty in any way cannot be taken over as an enemy property and the samecannot be put to sale.

LaxmiJanardhan Jew Thakur and 3 others vs Government of the People's Republic ofBangladesh, & ors 50 DLR 273.

Article 102–

If oneBranch of the Department of the Government is not following the lawful order ofthe hierarchy of the Governmental authority, definitely the person who isaggrieved can come before this Court and pray for direction or declaration toimplement, fulfil or obey the lawful order of the Government which theAdministrative Tribunal is not competent to do.

MatiurRahman (Md) vs Bangladesh, through the Secretary, Ministry of Establishment ofthe People's Republic of Bangladesh & ors 50 DLR 357.

Article 102–

Finding of factthat the kabala in question is a product of false personation cannot beinterfered in a petition of certiorari.

Karamat Aliand others vs Government of the People's Republic of Bangladesh & others 50DLR 372.

Article 102–

TheSyndicate being an executive authority of the University made nomination forSelection Board with lawful authority. The University order having providedremedy by way of appeal from the Syndicate's order, the writ petition is hit bythe doctrine of exhaustion.

Prof NurulAmin Bepari vs ViceChancellor & ors 50 DLR 405.

Article 102–

In taxingstatute the High Court Division by invoking its extraordinary jurisdiction asconferred under Article 102 of the Constitution should not convert it into anappellate authority where an aggrieved person has got adequate remedy by way ofappeal, review, etc. under the Act itself.

AmjadHossain vs Government of Bangladesh and others 50 DLR 458.

Article 102–

When forbreach of a term and a condition of an agreement an action is taken by a partythe remedy lies in a properly constituted suit and not in writ jurisdiction.

MeghnaVegetable Oil Industries Ltd vs Bangladesh Oil Gas and Mineral Corporation(Petro Bangla) and others 50 DLR 474.

Article 102–

Findingarrived at by the Labour Court being based on consideration of the oralevidence and the materials placed on record, there is no scope for thepetitioner to reagitate the said contention before this court for reexamination.

ManagingDirector, Contiforms Forms Limited and Peasant Trading Cold Storage (Pvt) Ltdvs Member, Labour Appellate Tribunal, Dhaka and others 50 DLR 476.

Article 102–

A person isentitled to file an application for enforcement of any of the fundamentalrights only when he is aggrieved by an order or proceeding taken against him byan authority or person performing any function in connection with the affairsof the Republic or of a local authority.

Mian AhmedKibria vs Government of Bangladesh and others 50 DLR 496.

Article 102–

Therespondent auction purchaser has suffered for not being able to take deliveryof the goods due to the action of the petitioner. He is therefore entitled toget cost from the petitioner. The Rule is discharged with cost assessed at Taka25,000.00 to be paid to the respondent by the petitioner.

Mian AhmedKibria vs Government of Bangladesh and others 50 DLR 496.

Article 102–

The medicalexamination shows petitioner Rehana Begum is over 16 and she did not for amoment want to continue to be detained in the jail custody. She stated that shewas quite capable of taking care of herself. The petitioner be set at libertyforthwith from this Court.

Rehana Begumand another vs Government of Bangladesh and others 50 DLR 557.

Article 102–

Where in acase the petitioner himself denies the allegations that he is a defaulter andthe news published shows that he is a defaulter on the basis of disclosure madein the Parliament gives rise to a disputed question of fact. Where such disputeis raised this Court acting under Article 102 does not invoke its power toresolve the dispute.

Stadmax Ltdvs General Manager, Credit Information Bureau, Bangladesh Bank & others 50DLR 594.

Article 102–

Where anauthority is vested with jurisdiction and in exercise of such jurisdiction itcommits mistake such mistake cannot be amenable to judicial review under thehigh prerogative writ jurisdiction which the court exercises as discretionaryone.

Abdul LatifHowlader vs Additional Deputy Commissioner (Revenue) & others 50 DLR 638.

Article 102–

The authoritycan never justify an order of preventive detention by merely saying that theaction was taken in the interest of public safety and public order. It has tosatisfy the High Court Division which is an obligation cast upon the Court bythe Constitution, that there were materials on record as would satisfy areasonable person to justify the order of detention.

MostafizurRahman vs Bangladesh, represented by the Secretary, Ministary of Home Affairsand another 51 DLR (AD) 1.

Article 102–

No actiondetrimental to the vested right of an individual or corporate body can be takenexcept in accordance with law.

BrahmanbariaPourashava vs Secretary, Ministry of Land Reforms, Government of Bangladesh andothers 51 DLR (AD) 84.

Article 102–

The HighCourt Division appear to have misconstrued and misconceived their jurisdictionunder Article 102 in holding that the writ petition is maintainable, where thewrit petitioner had already availed of the special remedy provided undersection 7 of the Ordinance.

Bangladeshvs Anwar Ahmed and others 51 DLR (AD) 42.

Article 102–

A writpetition cannot be founded merely on contract, but when a contract is concludedthe contractor has a legitimate expectation that he will be dealt with fairly.

ManagingDirector Dhaka WASA vs Superior Builders and Engineers Ltd 51 DLR (AD) 56.

Article 102–

Thepetitioners having accepted the benefit cannot now term the same as illegal.The High Court Division in exercising writ jurisdiction rightly refused toexercise discretion in favour of the petitioners as it is unconscionable toblow hot and cold in the same breath.

Nurul Haque(Md) and another vs Government of the Peoples Republic of Bangladesh,represented by the Secretary, Ministry of Communications, Railway Division andothers 51 DLR (AD) 140.

Article 102–

The HighCourt Division in its writ jurisdiction is not a Court for the recovery ofmoney and has no jurisdiction to give a direction for payment of a particularamount of money to the writ–petitioner, unless the amount claimed is both anadmitted amount as well as a statutory payment.

Chairman,Bangladesh Water Development Board & another vs Shamsul Huq and Co Ltd& others 51 DLR (AD) 169.

Article 102–

A writ Courtcannot and should not decide any disputed question of fact which requiresevidence to be taken for settlement.

ShamsunnaharSalam and others vs Mohammad Wahidur Rahman and others 51 DLR (AD) 232.

Article 102–

In order tomaintain a petition as public interest litigation or social action litigationthe petitioner must satisfy the Court that he has sufficient interest andcontribution in the field in espousing the cause of the members of the public.

Nasiruddin(Md) vs Secretary, Ministry of Local Government & Rural Development andothers 51 DLR (AD) 213.

Article 102–

Where acontract is entered into by the State and or by a statutory authority for theperformance of statutory duty, any breach of term of such contract is amenableto judicial review by the High Court Division.

QC ShippingLimited and another vs Chittagong Port Authority and others 51 DLR 64.

Article 102–

Where anotice is passed without lawful authority and where the respondents alsorealised the rates without any legal sanction for refund of such illegallyrealised money it is within the province of the High Court Division to orderwrit of mandamus upon the respondents directing refund of money illegallycollected.

QC ShippingLimited and another vs Chittagong Port Authority and others 51 DLR 64.

Article 102–

Meresubmission of a tender would not create a right in favour of the tenderer tohave his tender accepted unless he has been pushed aside in violation of thecondition of the tender form. To protect a right the right must exist atpresent and not in future.

ABM RuhulAmin, Managing Director vs Bangladesh Freedom Fighters Welfare Trust and others51 DLR 208.

Article 102–

Where anorder was passed under Martial Law Order 9 of 1982 the person affected therebyhaving had filed review petition before the competent authority has a right toget review of his grievance and if during pendency of the review petitionMartial Law was withdrawn even then he is entitled to have the review petitiondecided by a forum to be created for disposing of the application for review.

LutforRahman vs Divisional Mechanical Engineer and others 51 DLR 133.

Article 102–

When theGovernment proposes to impose a penalty on the delinquent officer, it shouldgive reasons as to why it differs from the conclusions of the Tribunal, thougheven in such a case it is not necessary that the reasons should be detailed orelaborate.

GolamMostafa Miah (Md) vs Bangladesh, represented by the Secretary, Ministry ofEstablishment and others 51 DLR 248.

Article 102–

When a courtexercises jurisdiction which is beyond its territorial limits, that exercise ofjurisdiction is void and the order passed is tainted with coram non–Judice.

Grameen BankKarmachari Union vs Member, Labour Appellate Tribunal Dhaka and others 51 DLR179.

Article 102–

Bankingbusiness of the respondent No. l owned by the Government is not in exercise ofany statutory power and is done by the respondent No. l in the capacity of anordinary business organisation and, as such, writ of mandamus does not lieagainst the respondent No 1 to enforce an ordinary contract.

FazlurRahman and Co (Pvt) Ltd vs Agrani Bank and others 51 DLR 350.

Article 102–

Court ofSettlement shall consist of a Chairman and two other members who shall beappointed by the Government.

Secretary,Ministry of Public Works vs Court of Settlement (1st Court) BangladeshAbandoned Building 51 DLR 396.

Article 102–

WritPetitioner having not initially taken objection to complying with requirementunder the impugned letter and having rather obtained extension of time forcomplying with the same is liable to be saddled with heavy cost forunnecessarily harassing the respondents and stalling the enquiry against him byobtaining Rule and order of stay.

KhurshidAlam vs Securities and Exchange Commission and others 51DLR534.

Article 102–

It wasabsolutely unnecessary to comment on the petitioner's title to and possessionof land in a manner favourable to the writ petitioner. Those findings will notbe taken into account as a finding of fact or law either by the trial Court inthe Suit or by any other Court in any future litigation regarding the title.

Governmentof the People :S Republic of Bangladesh vs East West Property DevelopmentPrivate Ltd & others 52 DLR (AD) 43

Article 102–

KhalilurRahman (Md) vs Government of Bangladesh and others 52 DLR (AD) 115.

Article 102–

Theaggrieved persons cannot wait for an indefinite period for the result of theirrepresentations but must come to the writ jurisdiction as expeditiously aspossible to avoid delay in seeking a summary relief. All of them are guilty oflaches, their writ petitions were therefore, rightly rejected, although ondifferent grounds.

FazlurRahman Akhond (Md) and five others vs Government of Bangladesh and others 52DLR (AD) 116.

Article 102–

Judicialpropriety and norm do not approve of passing of order by a. Division Bench whenthere was a pending order passed by another Division Bench.

NovartisFoundation vs RK Ruma and others 52 DLR (AD) 138.

Article 102–

It is wellsettled that a writ bench will not go into and resolve contentious matters inits summary procedure.

Bangladeshand another vs Habib Zamil 52 DLR (AD) 174.

Article 102–

A person inthe service of the Republic who intends to invoke fundamental right forchallenging the vires of a law will seek his remedy under Article 102(1 ), butin all other cases he will be required to seek remedy under Article 117(2).

DelwarHossain Mia (Md) and another vs Bangladesh and others 52 DLR (AD) 120.

Article 102–

Locus standi–Anywrong doing or invasion of public rights against the aims and objects ofsocieties does clothe the petitioners with the necessary locus standi to movethe Courts of law.

ProfessorNurul Islam and others vs Government of the People's Republic of Bangladesh& ors 52 DLR 413.

Article 102–

The right tooffice one holds and the right to pay/salary one draws are vested during thecontinuance of the employment. An action affecting, altering or infringing uponany such right taken not in accordance with law must be struck down.

Amirul Islam(Md) and others vs Thana Nirbahi Officer and others 52 DLR 388.

Article 102–

We failed tounderstand under what reason the period of limitation has been fixed at 108days. Either it would be one month, three months or six months but section 7(1)has provided the Limitation of 108 days which means 3 months 18 days and suchperiod of limitation could nowhere be found in the Limitation Act or in anyother special Act providing limitation, this may be through inadvertence ormistake that 180 days has been printed as 108 days.

JamalHossain (Md) and others vs Chairman, 2nd Court of Settlement, AbandonedBuildings, Dhaka and others 52 DLR 67.

Article 102–

Defect ofparty– Assertion of the respondent that alleged unutilised land have beenallotted to different persons and they are in possession o(the same having notbeen denied by the petitioners, the Rules are bad for defect of parties.

Jamir Ali(Md) and others vs Secretary, Ministry of Land and others 52 DLR 125.

Article 102–

Vested right–Petitioner'scontention that his vested right in the fishery has been violated is not well–conceivedin that by the execution of lease deed in his favour prior to acceptance of thebid by the authority no right of any kind in the fishery was created in hisfavour.

Bashiruddin(Md) vs Bangladesh, and others 52 DLR 201.

Article 102–

Sincepetitioner's bid was not ultimately approved by the prescribed authority, soeven if lease deed was executed and possession was delivered before approval ofbid he did not acquire any right in the fishery in question.

Bashiruddin(Md) vs Bangladesh, and others 52 DLR 201.

Article 102–

Safe custodyis a judicial custody for definite purpose of ensuring the welfare of a victimgirl devised by our courts.

Rokeya Kabirvs Government of Bangladesh through the Ministry of Home Affairs and others 52DLR 234.

Article 102–

Interministerialcommunications are merely policy guidelines and do not create any legal rightin favour of any person.

Nur Hossain(Md) vs Secretary, Ministry of Land and ors 52 DLR 275.

Article 102–

Legitimateexpectation–The petitioners' expectations of being absorbed in the serviceafter satisfactory completion of five years service cannot but be said to betheir legitimate expectation and in all fairness they should be absorbed intheir service.

Rabia BashriIrene and another vs Bangladesh Biman Corporation and another 52 DLR 308.

Article 102–

Thepetitioner being one of the contracting parties can establish before acompetent Court that there had been a mutual mistake and seek remedy forrectification of the contract. The writ Court cannot direct the respondents torectify or alter the contract in order to make it equal to the contracts enteredinto with the others.

Abu Mohammadvs Government of the People's Republic of Bangladesh & another 52 DLR 352.

Article 102–

Distributionof population in different wards with a variation of not more than ten percentbeing a disputed question of fact cannot be decided in writ jurisdiction.

Abdul Mannanand another vs Secretary, Ministry of LGRD and others 52 DLR 471.

Article 102–

A case oflegitimate expectation would arise when a body by representation or by pastpractice aroused expectation which it would be within its powers to fulfil. Ina given case whether there are such facts and circumstances giving rise tolegitimate expectation, it would primarily be a question of fact.

North SouthProperty Development Ltd vs Ministry of Land, Secretary, & another 52 DLR7.

Article 102–

Since theCourt of Settlement has already directed for exclusion of the property from thelist of abandoned property no further direction by the High Court Division isnecessary to the same effect. The respondents are directed to restorepossession of the property to the petitioner evicting the occupier respondent.

AkhtarHossain vs Bangladesh, and others 52 DLR 148.

Article 102–

Unless afinal decision is made by higher Administrative Authority after the conclusionof the proceeding under challenge an application cannot be entertained by theAdministrative Tribunal, but before such decision to be made by the authority,the right of the petitioner in the service of the Republic and hisremuneration, cannot be curtailed by the respondent who had no legal authorityto do so. Therefore, the departmental proceeding is held to be without anyjurisdiction and it must be perished under the wheel of judicial review.

ShahjahanHowlader (Md) vs Bazlur Rahman & another 52 DLR 358.

Article 102–

There is noscope for violation of the fundamental rights of the petitioner as guaranteedby Article 35(4) of the Constitution inasmuch as the issuance of the noticeunder section 4(1) of the Act will be presumed to be the fact collectionprocess only.

BegumTahmina vs Government of Bangladesh and others 52 DLR 503.

Article 102–

Norelationship of landlord and tenant having existed now petitioners are inillegal occupation. Hence, they have no locus standi to invoke writjurisdiction of the Court.

MeridianInternational (Pvt) Ltd and another vs Rajdhani Unnayan Kartripakha (RAJUK) andothers 53 DLR 35

Article 102–

Against thedismissal options were open to the plaintiff either to sue .in a civil Court orto move in writ under Article 102 of the Constitution. He opted to sue in acivil Court. The decisions of the Courts below setting aside the order ofreturning the plaint therefore do not call for interference.

Sonali Bankand others vs Md Jalaluddin and another 53 DLR 48.

Constitution of Bangladesh, 1972 [Article 102] Part IV

Constitutionof Bangladesh, 1972

Article 102–

In theabsence of any specific address with proper description of land of respectivepossession there cannot be any restoration process.

Aleya Begumand others vs Bangladesh and others 53 DLR 63.

Article 102–

Justicedemands that even trespassers cannot be evicted forcibly without notice andwithout giving chance to them to remove themselves willingly.

Aleya Begumand others vs Bangladesh and others 53 DLR 63.

Article 102–

Justicedemands that slum dwellers should not be unkindly evicted without alternativearrangement for their rehabilitation. But in the instant case nothing can bedone at this stage when they were already evicted.

Aleya Begumand others vs Bangladesh and others 53 DLR 63.

Article 102–

This courtwhile exercising jurisdiction of judicial review cannot sit over the finding ofthe tribunal as a court of appeal and consequently cannot interfere with thefinding of fact based on the materials on record.

SirajulIslam (Md) and another vs Government of Bangladesh & others 53 DLR 127.

Article 102–

Theactivities of the registered trade organisations are subject to thejurisdiction of the Director as set up by the Trade Organisation Ordinance. Thepetitioner should have gone before the said Director.

Abul KhairMorselin (Md) vs Bangladesh and others 53 DLR 179.

Article 102–

The orderwas passed by the Special Tribunal and under section 30 of the Special PowersAct an appeal lies to this court but the petitioners did not file any appeal,instead moved this court in its writ jurisdiction. The petitioners tried toexplain the reasons for not preferring the statutory appeal. The explanationsare not cogent and those cannot be accepted to avoid the availability of thealternative remedy.

SirajulIslam (Md) and another vs Government of Bangladesh & others 53 DLR I 27.

Article 102–

Since therespondents did not dispute the fact that the declaration of price was filed on11–4–1994 and the same was accepted by the authority and that the petitionerhad paid VAT regularly on the basis of declaration no further fact is requiredto be determined. The question involved in this application being purely aquestion of law and the impugned demands being ex facie illegal, this writpetition is maintainable.

Oram Limitedvs Commissioner of Customs Excise and VAT Commissionerate 53 DLR 373.

Article 102–

Theappointment in a teaching post of the University although can only be made bythe Syndicate but the syndicate being a creation of Ordinance, cannot actarbitrarily or capriciously but must act judicially and fairly.

Dr MdAlamgir vs Vice Chancellor, BUET and others 53 DLR 398.

Article 102–

The WritPetition fails as the discrepancy as'to the date of impugned judgment of theCourt of Settlement has not been explained.

HamayetUddin Ahmed vs 1st Court of Settlement, Bangladesh Abandoned Building 53 DLR426.

Article 102–

The HighCourt Division could interfere with the findings of a tribunal only ifthetribunal had acted without jurisdiction or made any finding upon no evidence orwithout considering any material evidence causing prejudice to the complainingparty or acted malafide or in violation of the principle of natural justice.

HamayetUddin Ahmed vs 1st Court of Settlement, Bangladesh Abandoned Building & ors53 DLR 426.

Article 102–

The ministryinstead of obtaining post landing inspection report to remove apprehension thatcargo was bad detained the vessel in a high–handed manner which was not the wayauthorised by law or contract to recover loss.

SeastarShipping Lines Ltd vs Bangladesh & others 53 DLR 449.

Article 102–

Anyaggrieved party against the decision of the Divisional Commissioner in civilmatters can maintain an application under Article 102 of the Constitution andnot a revision petition under section 115(1) CPC.

BangladeshForest Industries Development Corporation and others vs Sheikh Abdul Jabbar 53DLR 488.

Article 102–

Since thequestion of title and possession have been settled by the highest Court of thecountry the Additional Deputy Commissioner (Revenue) had, in fact, no option inlaw but to mutate the name of the petitioner by correcting the record of right.

Abdul Moinvs Bangladesh represented by the Secretary, Ministry of Land; & ors 53 DLR506.

Article 102–

Contractualobligations–Writ jurisdiction–Since the respondent No. 1 itself was responsiblefor not completing the transaction of sale of the case–property, and there wasno reason for rescinding the contract rescission of the contract by the MemoAnnexure A is illegal and without any lawful authority.

Nazrul Islam(Md) and others vs Bangladesh, and ors 53 DLR 519.

Article 102–

Mattercontentious in nature Writ jurisdictlon–The instant case does not come within'the ground of exceptional cases where writ court may dispose of a matter by callingone to give one's testimony as to the subject matter of the case before thewrit court, particularly as to matter of possession of the plots 'and quan~ityof the lands comprised by the said plots mentioned in the instant writpetition.

Direct ofHBRI vs Darus Salam Co–operative Housing Society Ltd and ors 54 DLR (AD) 111.

Article 102–

WritJurisdiction– Locus standi

The narrowconfines within which the rule of standing was imprisoned for long years havebeen broken and new dimension is being given to the doctrine of locus standi.

EkushayTelevision Ltd and others vs Dr Chowdhury Mahmood Hasan and others 54 DLR (AD)130.

Article 102–

The cuttingedge of law is remedial and the art of justice has to respond here so thattransparency wins over opaqueness.

EkushayTelevision Ltd and others vs Dr Chowdhury Mahmmod Hasan and others 54 DLR (AD)130.

Article 102–

WritJurisdiction– Locus standi

Thepreliminary objection raised challenging the locus standi of the petitionersmust be rejected since important issues relating to public wrong and rule oflaw are involved.

EkushayTelevision Ltd and others vs Dr Chowdhury Mahmood Hasan and others 54 DLR (AD)130.

Article 102–

WritJurisdiction– Locus standi

It is not acase of jurisdiction of the court, but a case of discretion of the court, whichdiscretion has to be exercised on consideration of facts and law pointsinvolved in each case.

EkushayTelevision Ltd and others vs Dr Chowdhury Mahmood Hasan and others 54 DLR (AD)130.

Article 102–

WritJurisdiction– Laches and negligence

The test insuch case is not physical running of time but whether a parallel right hasaccrued and whether the lapse of time can be attributable to laches andnegligence.

EkushayTelevision Ltd and others vs Dr Chowdhury Mahmood Hasan and others 54 DLR (AD)130.

Article 102–

WritJurisdiction– Investigation by Court

If the Courtthought it appropriate that an investigation should be made in a writ petition,they were not barred from directing parties to lead evidence. Such aninvestigation only assists the court in the realisation of the constitutionalobjectives.

EkushayTelevision Ltd and others vs Dr Chowdhury Mahmood Hasan and others 54 DLR (AD)130.

Article 102–

WritJurisdiction– Malafide

The changingof the evaluation report is malafide, the process of preparing the evaluationreport is not transparent and subsequent actions taken on the basis of thechanged report are malafide– The licence given to ETV is not, therefore,sustainable in law.

EkushayTelevision Ltd and others vs Dr Chowdhury Mahmood Hasan and others 54 DLR (AD)130.

Article 102–

When thevery basis of issuance of notice under section 93 of the Ordinance is underchallenge on the ground of want of jurisdiction, the petitioner without approachingthe Commissioner under section 121 is entitled to invoke the writ jurisdiction.

AmericanExpress Bank Limited vs Chairman National Board of Revenue 54 DLR 6.

Article 102–

Writpetition– Locus standi

Thepetitioner claiming that he is affected by the hartal call is an aggrievedparty– He has the locus standi to file present petition.

KhondakerModarresh Elahi vs Government of the Peoples Republic of Bangladesh 54 DLR 47.

Article 102–

In view ofArticle 152(2) of the Constitution read with section 3(39) of the GeneralClauses Act, the word "person" in Article 102(2)(i) and (ii) of theConstitution would include a juristic person like a company.

FarzanaMoazzem vs Securities and Exchange Commission and others 54 DLR 66.

Article 102–

When the ordercomplained of itself suffers from inherent lack of jurisdiction, non–compliancewith the alternative remedy of appeal does not bar a writ petition.

Salim (Md)vs AC, Land and Chairman, Debt Settlement–Board and others 54 DLR 72.

Article 102–

Order ofretirement– Application for review– In view of the decision in 42 DLR (AD) 214the respondents are to communicate the result of the review application of thepetitioner. If the petitioner's application is still undisposed of, thegovernment may take step to dispose of the application by creating anappropriate Review Forum within 3 months from the date of receipt of thisorder.

Dewan AbdulKarim vs Secretary, Ministry of Home Affairs and ors 54 DLR 231.

Article 102–

An officer–in–chargeof a police station is legally bound to reduce an information of cognizableoffence into a first information report and to start investigation into thecase.

YasminSultana vs Bangladesh and others 54 DLR 269.

Article 102–

Thepetitioners being duly appointed by the Pourashava Chairman, their appointmentscannot be cancelled by him on the plea that there were some irregularities inthe matter of appointment. If any irregularity was committed, it was for theChairman to account for it but the petitioners cannot be penalised.

Khorshed Ali(Md) vs Secretary, Ministry of LGRD and Cooperatives and others 54 DLR 381.

Article 102–

There is noscope for appeal against an order impounding a passport where the order was notcommunicated to the petitioner. In such circumstances, a writ petition ismaintainable.

Tofail Ahmedvs Bangladesh 54 DLR 403.

Article 102–

WritPetition–Addition of Party

There is noscope of determining the question of title by the writ petition. The applicantcannot be made party on the plea that their title in the land was included inthe campus.

DewanbaghDarbar Sharif and another vs Bangladesh and others 54 DLR 413.

Article 102–

The contractfor one year lease made in discharge of an ordinary function not rooted in astatute cannot be enforced under the Writ Jurisdiction.

Ali Sikder(Md) vs Government of Bangladesh & others 54 DLR 453.

Article 102–

On theground of inordinate delay the Writ Petition is liable to be rejected.

DelwarHossain (Md) vs Bangladesh and others 54 DLR 494.

Article 102–

WritPetition– Maintainability

All theexercises that have been done by the contemners respondent Nos. 2 and 3 in thematter of preparation of the voter list and holding of the election have beendone by them in their official capacity as government servants and thereforeany order passed by them in their official capacity is amenable under Article102 of the Constitution notwithstanding the fact that the federation itself isnot a statutory body.

Solaiman(Md) and others vs Md Mosharaf Hossain Khan and others 54 DLR 531.

Article 102–

Writpetition– Locus standi

A personnot personally aggrieved may also come if his heart bleeds for his Jessfortunate fellow for any wrong done bythe Government. When an action concerns public wrong or invasion on thefundamental rights of indeterminate number of people, any member of the publicsuffering the common injury has the right to invoke the writ jurisdiction.

ChowdhuryMahmood Hasan and others vs Bangladesh and others 54 DLR 537.

Article 102–

Writ petition–Locus standi

Though thepetitioners are not directly affected by the action of the respondents but whenthey came to know about the malafide action of a very responsible Ministry ofthe Government, they are entitled to move this Court for judicial review ofsuch action.

ChowdhuryMahmood Hasan and others vs Bangladesh and others 54 DLR 537.

Article 102–

The courtcannot review the merits of the decision of the executive authority but canreview the decision making process.

ChowdhuryMahmood Hasan and others vs Bangladesh and others 54 DLR 537

Article 102–

Writpetition–Transparency

Questions - whythe Ministry of Information acted on an incomplete and conditional report, howthe conditions were determined, how on such a vague report the Ministry foundonly ETV agreeable to fulfil the conditions remained shrouded in mystery.

ChowdhuryMahmood Hasan and others vs Bangladesh and others 54 DLR 537.

Article 102–

Writpetition– Transparency– It is true that ETV obtained a certificate of registrationbut obtaining of such a certificate itself is not sufficient to set uptelecasting installation. The process of accepting the proposal of ETV was nottransparent and as such was malafide.

ChowdhuryMahmood Hasan and others vs Bangladesh and others 54 DLR 537.

Article 102–

Writpetition– Malafide

The proposalsubmitted by the proprietor of the firm and signing of agreement with himcannot be considered as illegal–But the process followed in accepting theproposal of ETV being malafide and not transparent, granting of the licence toit was not lawful.

ChowdhuryMahmood Hasan and others vs Bangladesh and others 54 DLR 537.

Article 102–

Only thatperson is entitled to get a show cause notice from whose custody the goods inquestion is seized. In the instant case the goods were seized from an abandonedtruck and therefore the order of confiscating the goods in the absence of theshow cause notice could not make the order of confiscation as illegal.

Governmentof Bangladesh and others vs Abu Musa 53 DLR (AD) 77.

Article 102–

Factsalleging which legality of the declaration of election result has beenchallenged are an election dispute. In Part–III of the Rules provision has beenmade for adjudication of such dispute by the election tribunal.

Mozibur RahmanMoznu (Md) vs Abdul Halim and others 53 DLR (AD) 93.

Article 102–

When the petitioner contested the case beforethe Tribunal and has not preferred any appeal and when he had a remedy beforethe Administrative Appellate Tribunal writ petition was rightly rejected.

Governmentof Banlgadesh vs Member, Administrative Tribunal, Dhaka and others 53 DLR (AD)112.

Article 102–

Mandamus–One could only avail the forum by way of mandamus for enforcement of any legalright or to redress the violation thereof.

Hazerullahvs AC, Board of Management of Abandoned Property and others 55 DLR (AD) 15.

Article 102–

Therespondent could have approached the appropriate authority to agitate itsinevance before it and wait for its reply. But instead it went to the HighCourt Division straightaway invoking the writ jurisdiction before the cause ofaction, if any, had matured.

Secretary,Ministry of Education, Government of People's Republic of Bangladesh and othersvs North South University 55 DLR (AD) 94.

Article 102–

Though theGovernor and Deputy Governor of Bangladesh Bank are members of the Board ofDirectors of Security Printing Corporation (Bangladesh) Limited they do notperform any function of the company for or on behalf of the Bangladesh Bank.They merely discharge their duties as members of Board of Directors of thecompany and while they discharge such duties and functions they do notdischarge such duties and functions in connection with the affairs of theRepublic of any local authority. So, their action cannot be challenged underArticle 102(2)(a)(i) of the Constitution.

GlobalAccess Ltd vs Bangladesh and others 55 DLR 433.

Article 102–

Though HighCourt Division found relying upon the case of Sultana Jute Mills Ltd that arevisional application under section 115 of the Code against an order of theArtha Rin Adalat is not maintainable made the Rule absolute invoking inherentpower of the court under section 151 of the Code.

Agrani Bankvs Artha Rin Ada/at and others 55 DLR 389.

Article 102–

Reliefclaimed regarding declaration of the news to be without any basis and/or fordirection to pay compensation by the respondent Nos. 4 and 5 are notjusticiable under Article 102 of the Constitution, there being otherefficacious remedy available and also the respondent Nos. 4 and 5 being notpersons performing any function in connection with the affairs of the Republic.

Aminul HaqueShamim (Md) vs Secretary, Ministry of Information and others 55 DLR 90.

Article 102–

Theregistration of the proposed project as approved by the Board of Investment inthe absence of any feasibility report and financial analysis is act ofnegligence and arbitrariness.

EngineerMahmudul Islam and others vs Government of the People's Republic of Bangladeshand others 55 DLR 171.

Article 102–

Since wehave seen that the impugned approval has been given effect, even in the absenceof the agreement of implementation, which is under process, and based on suchapproval leases of land are given in favour of respondent No. 8, the impugnedapproval appears to be an independent form of a full–fledged contract, whichhas been processed arbitrarily without application of mind with negligence infavour of an illegal company, and therefore the approval is illegal, withoutlawful authority and is of no legal effect.

EngineerMahmudul Islam and others vs Government of the People's Republic of Bangladeshand others 55 DLR 171.

Article 102 –

Locus standi–The question of locus standi does not involve the Court's jurisdiction–Thecompetency of a person to claim hearing is one of discretion, which the Courtexercises upon due consideration of the facts and circumstances of each case–Anycitizen may move the Court in respect of an impending threat of the right andinterest of the citizen.

EngineerMahmudul Islam and others vs Government of the People's Republic of Bangladeshand others 55 DLR 171.

Article 102–

When theabuse of office through any improper action of a State executive in dealingwith State property as well as State policy is alleged, the Court will notclose its eyes to redress such improper action on the technicalities as to thequestion of locus standi of the petitioner and maintainability of theproceeding.

EngineerMahmudul Islam and others vs Government of the People's Republic of Bangladeshand others 55 DLR 171.

Article 102–

A decisionof the State may not be permitted to be challenged in a Court of Law but theimplementation of such decision by the executive authority of the State withoutreasonableness and fairness is liable to be challenged in the Court of Law.

EngineerMahmudul Islam and others vs Government of the People's Republic of Bangladeshand others 55 DLR 171.

Article 102–

The detenuis directed to be set at liberty within three hours and the District MagistrateAbdul Huq is to pay him a compensatory cost of Taka 5,000 for whimsicalexercise of power curtailing the liberty of a person.

Karban (Md)vs Government of Bangladesh and others 55 DLR 194.

Article 102–

True, thegovernment which accorded registration to the samity of the respondent No. Iwas present before the writ court and contested the Rule but the government,for that matter, could not be taken to be a substitute for the reviewpetitioners in protecting their interest.

MA Bari andothers vs Uttara Sarkari Officers Quarter Kallayan Samity & ors 55 DLR 289.

Article 102–

While theorder of stay was in force the Department of Social Welfare accordedregistration in favour of the samity of the writ petitioners. Hence theregistration is invalid and a nullity.

MA Bari andothers vs Uttara Sarkari Officers Quarter Kallayan Samity & ors 55 DLR 289

Article 102–

Since thejudgment in the writ petition was obtained by the respondent writ petitionerbehind the back of the review petitioners adversely affecting their interestthe same is set aside on review.

MA Bari andothers vs Uttara Sarkari Officers Quarter Kallayan Samity & ors 55 DLR 289.

Article 102–

Maintainabilityof writ petition– When applicability or non–applicability of certain Orders,Notifications, Rules are in question, in that case, it is a question ofinterpretation of law. Where interpretation of law is in question, the WritPetition is maintainable.

RelianceAuto Ltd vs Commissioner of Customs, Customs House, Chittagong 55 DLR 322.

Article 102–

PublicInterest Litigation–The settled position is that one cannot resort to thisArticle unless he is "an aggrieved" person within the meaning of thisarticle. This concept of aggrievedness is somewhat relaxed in certain circumstanceswhen it comes to public interest litigation. But even in case of suchlitigation the petitioner must have sufficient interest in the matter.

SN Goswami,Advocate & anr vs Govt of the People's Republic of Bangladesh & ors 55DLR 332.

Article 102–

Locus standi–The petitioners are persons having least know ledge about the appointments inquestion and also have no personal interest and thus they are none butbusybodies.

SN Goswami,Advocate & anr vs Govt of the People's Republic of Bangladesh & ors 55DLR 332.

Article 102–

Provisionsof these sections are to some extent inconsistent with the provisions of theConstitution–To remove the inconsistencies some recommendations as given hereinare needed.

BangladeshLegal Aid and Services Trust (BLAST) and others vs Bangladesh and others 55 DLR363.

Article 102–

Thepetitioner ought to have been given chance to adduce evidence to prove the deedof sale in his name– His prayer should not be thrown away on the plea that hisAdvocate previously expressed intention not to examine any further witness.

Abdur Rahmanvs Government of Bangladesh and another 55 DLR 196.

Article 102–

Appointmentof a judge to the Appellate Division from amongst the judges of the High CourtDivision is not a promotion, it is a fresh appointment made by the Presidentunder article 95(1) from amongst the qualified persons in terms of sub–article(2) of article 95 of the Constitution.

SN Goswami,Advocate & anr vs Govt of the People's Republic of Bangladesh & ors 55DLR 332.

Article 102–

In thematter of public service, right to the post one holds and the pay one receivesare vested and none of the rights could be affected adversely by any authoritywithout notice or personal hearing following the procedures laid down by theRules and/or Regulations for such service.

Helal Uddin(Md) vs Government of People's Republic of Bangladesh and others 55 DLR 506.

Article 102–

Contractwith Government–In each and every contract entered into between the Governmentand a private individual writ jurisdiction cannot be invoked because the remedylies in damages.

Al–AminConstruction Co Ltd vs Government of the People's Republic of Bangladesh andothers 55 DLR 510.

Article 102–

Contractwith Government– Even in case of a private contract being a trading contract ifthe Government acts with malafide intention Writ Petition for breach ofobligation against the Government lies.

Al–AminConstruction Co Ltd vs Government of the People's Republic of Bangladesh andothers 55 DLR 510.

Article 102–

Bid forpublic work– Public functionaries in discharging public duty must not be seento be acting unreasonably, unfairly, arbitrarily and their action must be freefrom any taint· of opacity and/or intransparency.

Al–AminConstruction Co Ltd vs Government of the People's Republic of Bangladesh andothers 55 DLR 510.

Article 102–

Environmentalhazards– Directions to ensure air and atmosphere free from pollution–Urgentpreventive measures to halt sagging environment pollution and degradation of Dhakacity, one of the worst in the world, due to audible vehicular sounds andemission of hazardous black smoke from faulty and arrogant motor vehicles isindeed, overdue. Hence, in the prevailing situation, ad–interim directions assought for and necessary are given.

Dr MohiuddinFarooque and another vs Government of Bangladesh and others 55 DLR 613.

Article 102–

There is noprovision in the Constitution precluding the High Court Division to review itsJudgment and order– The Court's inherent power to do justice to the partiesbefore it is accepted one and for that purpose the form in which the Courtshall dispense justice is a matter for the Court to resort to.

SerajuddinAhmed and others vs AKM Saiful Alam and others 56 DLR (AD) 41.

Article 102–

The birthright of anyone to be a citizen of any particular country could not be brushedaside in the absence of any positive contrary intention manifested so as todeprive him of the right to be a citizen of a country where he was born.

Bangladeshvs Rehana Kamal and others 56 DLR (AD) 1.

Article 102–

WhenGovernment feels necessity of terminating appointment of a Public Prosecutor,questioning legality of termination of such appointment by a person claiming tobe the informant of or the witness in the case can hardly be considered legallywell conceived.

SM JillurRahman vs Bangladesh and others 56 DLR (AD) 127.

Article 102–

Unless finalorder is passed in a matter, person interested in the matter or personsapprehensive of being affected by the act of functionaries performing·functions in connection with the affairs of the Republic or of a localauthority is not entitled to invoke the writ jurisdiction.

Kamaluddin(Md) and another vs Secretary, Ministry of Land, Bangladesh and others 56 DLR(AD) 212.

Article 102–

Locus standi–Aprincipal or a teacher of a Non–Government College or School has no locusstandi to file a writ petition challenging the legality of nomination ofChairman of the Governing Body of the College/School.

AlauddinSikder (Md) and another vs Bangladesh and others 56 DLR (ADJ 130.

Article 102–

Cost– Thepetitioners in spite of being conscious of their having no locus standi tomaintain the writ petition filed the same and thus entangled the college intouseless litigation touching fund of the college with ulterior motive. 1n thisview the petitioners be saddled with cost.

AlauddinSikder (Md) and another vs Bangladesh and others 56 DLR (AD) 130.

Article 102–

Writjurisdiction–Alternative remedy

If an orderaffecting one's legal right is challenged as wholly without authority, analternative remedy provided by the statute will not stand in the way of theexercise of writ jurisdiction.

BangladeshBank and others vs Zafar Ahmed Chowdhury and another 56 DLR (ADJ 175.

Article 102–

Withoutissuing any Rule while disposing of the application under Article 102 of theConstitution the High Court Division was not authorised in law to pass any ad–interimrelief which it could pass in aid of or ancillary to the main relief upon finaldetermination of the rights of parties.

BangladeshBank and others vs Zafar Ahmed Chowdhury and another 56 DLR (AD) 175.

Article 102–

Mere raisinga dispute as to a fact does not make it disputed and the writ court whileexercising its power of judicial review can very much decipher the facts in thecontext of the papers filed by the parties to see prima facie the bonafide ofthe claim of the conflicting parties to the same right.

EkusheyTelevision Ltd and another vs Bangladesh and others 56 DLR 91.

Article 102–

Mere readingof the provisions of the Act of 200 I show that the same have been made toprotect the interest and the right of the persons who had an existing vestedlegal right on the basis of a validly obtained licence, certificate or permit·or licensing agreement before the Act of 2001 came into operation.

EkusheyTelevision Ltd and another vs Bangladesh and others 56 DLR 91.

Article 102–

Theauthority appears to have passed the impugned order of transfer of thepetitioner in the garb of stay of the earlier order of transfer. The order istherefore, declared to have been passed without lawful authority.

SerajulIslam Bhuiyan (Md) vs Bangladesh Water Development Board and others 56 DLR 120.

Article 102–

An actiontaken without lawful authority can be challenged by an aggrieved person on anapplication under Article 102 of the Constitution, and the criminal caseagainst him, if any, or non appearance in the said criminal case shall notdebar him from seeking justice in this forum under Article 102 of theConstitution.

ShafiqulIslam Shimul (Md) vs Bangladesh and others 56 DLR 239.

Article 102–

When aTribunal commits an error of law in deciding an issue raised by it, it actsbeyond its jurisdiction and such decision of the Tribunal can be quashed underwrit jurisdiction.

Abdur RashidChowdhury vs Additional District Judge and other 56 DLR 573.

Article 102–

Principle oflegitimate expectation– An order made only once about 12 years back and thatalso is not relating to the class of employees to which the petitioners belong.Issuance of such a single order cannot be treated as a regular practice inorder to create a legitimate expectation.

Kazi LiakatAli and others vs Chairman, Civil Aviation Authority and another 56 DLR 595.

Article 102–

Applicationis not maintainable as there is a provision for appeal against the impugnedorder available under section 35 of the Waqf Ordinance. Without detailedexamination of evidence it cannot be said whether the property in question is aWaqf property or not. Such detailed examination is hardly possible under writjurisdiction.

AKM AbdullahHarun vs Additional District Judge and others 56 DLR 654.

Constitution of Bangladesh, 1972 [Article 102] Part V

Constitutionof Bangladesh, 1972

Article 102, substituted sub–Article (5)–

The HighCourt Division in spite of the substituted sub–Article (5) of Article 102 ofthe Bangladesh Constitution is competent to examine the propriety or otherwiseof an act of such a person when it acts malafide or in coram non judice.

FazlurRahman Chowdhury vs Bangladesh 39 DLR 314.

Articles 102, 31 & 40–

Contractualobligation– Writ jurisdiction– Ramna Cafeteria being property of the governmentunder the PWD is not distinguishable from Government property like fisheries,etc. the government is equally the owner of all of them which are leased out tothe successful bidders according to the rules in exercise of powers rooted instatute. The contract between the parties was not an ordinary contract between·ordinary tenderer and buyer, rather the Government acted in this case in thecourse of administration of the affairs of the Republic.

ShahadatHossain vs Executive Engineer 44 DLR 420.

Articles 102 & 42–

Thepetitioner being a "person aggrieved" by enlistment of her house asabandoned property can maintain a writ petition irrespective of whether she hasother equally efficacious remedy or not.

SarwariBegum vs Bangladesh 45 DLR 571.

Articles 102 and 103–

Rules as todischarge of onus probandi. A mere denial by the respondent of a fact in issueraised by the petitioner in a Writ Petition will not render that fact adisputed fact but if the assertion made by the petitioner is unsupported bymaterials to the satisfaction of the Court, the Court may refuse to act on suchmaterial alone–Where the respondent denies a fact without adducing convoking materialin support of such denial but the court finds it difficult to draw a definitiveinference or conclusion from the assertion of the petitioner then it will be acase where the petitioner has failed to discharge his onus probandi.

Dr SyedMatiur Rob vs Bangladesh 42 DLR (AD) 126.

Articles 102 & 103–

It will beinappropriate for the High Court Division to reject an application summarily,when according to the High Court Division, it involves a substantial questionof law as to the interpretation of the Constitution. But when the High CourtDivision summarily rejects a writ petition then it will be equallyinappropriate to give a certificate under Article 103.

Rear AdmiralAA Mustafa vs Bangladesh 46 DLR (AD) 43.

Articles 102 & 109–

Artha RinAdalat Act cannot take away the power of superintendence and control of theHigh Court Division over all Courts subordinate to it as conferred by theprovision of Article 109 of the Constitution.

IftekharAfzal and another vs Pubali Bank Limited & ors 50 DLR 623.

Articles 102 & 116–

When adeclaratory judgment is passed by a Court it is usually retrospective innature, unless otherwise indicated. Therefore the interpretation of Article 116of the Constitution given by the High Court Division will be operative eversince the amended Article 116 is in operation.

Governmentof Bangladesh represented by the Secretary, Ministry of Establishment vsJdrisur Rahman, Advocate and others 51 DLR (AD) 163.

Articles 102 & 117–

The decisionof the Appellate Tribunal like that of the Tribunal is immune from any reviewunder Article 102 because Article 117 also applies to the Appellate Tribunal.

MujiburRahman vs Bangladesh 44 DLR (AD) 111.

Articles 102 and 117–

Civilianemployees in the Defence Services, not being members of any of the DefenceService, are holders of civil posts who now have to move the AdministrativeTribunal for redress of their grievances and cannot move the High CourtDivision in Writ jurisdiction.

SirajulIslam Thakur vs Bangladesh 46 DLR 319.

Articles 102 & 117–

TheAdministrative Tribunal, in exercise of its power under clause (1) of Article117 of the Constitution, cannot knock down a law on the ground of itsunconstitutionality and, as such, it appears that the Administrative Tribunalis not competent to entertain the case in which the petitioners have prayed forknocking down a certain provision of law contained in Annexure–B and Annexure–Cof the writ petition. Since the Administrative Tribunal does not have anyjurisdiction to knock down the aforesaid provisions of law we find that it hasno jurisdiction to decide this matter and, as such, clause (2) of Article 117of the Constitution ousting the jurisdiction of this Court is not attracted.

RetiredGovt. Employees Welfare Association vs Bangladesh 46 DLR 426.

Articles 102 & 117–

Even in thepresence of an alternative remedy, the petitioner, instead of going to theAdministrative Tribunal, can come before this court for the protection of hisfundamental right of equality of opportunity in the service of the Republic.

SazedurRahman vs Secretary, Ministry of Establishment, and others 50 DLR 407.

Articles 102 & 117–

Question ofpayment of subsistence to the government servant during suspension, relates toterms and conditions of service within the jurisdiction of the AdministrativeTribunal.

Sheikh AbdulHakim vs Government of the People's Republic of Bangladesh and others 52 DLR333.

Articles 102 and 117–

Since thepetitioner has challenged the vires of law i.e. section 8 of Act XX of 2000,the present writ petition is entertainable as the Administrative Tribunal hasno authority to strike down section 8 of the impugned Act.

SalahuddinTalukder (Md) vs Government of the People's Republic of Bangladesh 56 DLR 161.

Articles 102 & 125(b)–

Since noTribunal has been constituted by any law for the trial of the election disputewith regard to the election of the President of Bangladesh, the presentpetitioner has no other alternative but to file the instant writ petition underArticle 102 of the Constitution.

Abu BakkarSiddique vs Justice Shahabuddin Ahmed and others 49 DLR 1.

Articles 102 & 134–

Militarypersonnels hold their posts during the. pleasure of the President. In the caseof the civilian employees the pleasure theory is curtailed by constitutionalprovisions but in the case of a military personnel there is absolutely noexception to this theory of pleasure.

LieutenantGeneral Abu Saleh Mohammad Nasim (Retired), BB psc vs Bangladesh 51 DLR (AD)101.

Articles 102 and 142–

Interpretationof constitutional provisions–The Constitution cannot be distorted in exerciseof the power under Article 142–Ifthe Supreme Court is retained but the power ofjudicial review under Article 102 is taken away, the form will be there but thesoul will be gone and the Constitution will be rendered unworkable– Noobjection to exercise of amending power to fulfill the needs of time and of thegeneration–Power not to be construed to turn the Constitution which is ascripture of hope into a scripture of doom.

AnwarHossain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Articles 102, 142, 149 & Para 3A(7) & 18 of the 4thSchedule–

IndemnityOrdinance No. 50 of 1975 is not a part of the Constitution, rather it is anordinary law protected and saved in the category of "other laws" inparagraphs 3 A and 18 of the 4th Schedule. In pursuance of paragraphs 3A(7) ofthe 4th Schedule and Article 149 of the Constitution, this Ordinance has beenlegally repealed by simple majority members of the Parliament, as such theIndemnity (Repeal) Act, 1996, does not offend either paragraphs 3A and 18 ofthe 4th Schedule or Article 142 or any other provisions of the Constitution.

ShahriarRashid Khan vs Bangladesh, represented by the Secretary, Ministry of Law andParliamentary Affairs and others 49 DLR 133.

Articles 102 and 152(2)–

A company isalso a person under section 3(39) of the General Clauses Act read with Article152(2) of the Constitution. The word 'person' occurring in Article 102includes, by operation of section 3(39) of the General Clauses Act, a companyas well.

So, undersection 3(39) of the General Clauses Act read with Article 152(2) of theConstitution a company is also a person. Moreover, it appears to us that theword, "person", has been used in unqualified term thereby including ajuristic person. If it was intended to limit its meaning to its narrower senseto mean an "individual" to the exclusion of any juristic person itwould have been done in explicit language. In absence of any explicit languageto exclude a juristic person from the word "person" we are inclinedto hold that the word "person" occurring in Article 102 includes, byoperation of section 3(39) of the General Clauses Act, a company as well.

ConforceLimited vs Titas Gas Transmission 42 DLR 33.

Article 102(1)–

Judicialreview– This flows from the Court's constitutional duty to enforce afundamental right with regard to the vires of a law.

Asaduzzamanvs Bangladesh 42 DLR 144.

Article 102(1)–

The impugnedlegislation (the Amending Act No. 14 of 1989 which amended PO No. 26 of 1973)has not violated any provision of the Constitution– Motives of the majorityparty in the Legislature in passing an enactment or its merits are non issuesin a proceeding under Article 102( 1) of the Constitution when theconstitutionality of an enactment is prima facie unassailable.

Asaduzzamanvs Bangladesh 42 DLR (AD) 144.

Article 102(1)–

Article 102is a mechanism for the enforcement of Fundamental Rights which can be enjoyedby an individual alone insofar as his individual rights are concerned, butwhich can also be shared by an individual in common with others when the rightspervade and extend to the entire population and territory: Per Mustafa Kamal Jdelivering the Full Court Judgment.

Dr MohiuddinFarooque vs Bangladesh, represented by the Secretary, Ministry of Irrigation,Water Resources and Flood Control and others 49 DLR (AD) 1.

Article 102(1)–

Per KaziEbadul Haque J. : When a writ petition is filed for enforcement of fundamentalrights under Article 102(1) of the Constitution there is no question ofexhaustion of other equally efficacious remedy and as such in spite of suchremedy being available in the matter under any law a writ petition forenforcement of any of the fundamental rights appears to be maintainable.

Bangladeshand others vs Mizanur Rahman 52 DLR (AD) 149.

Article 102(1)–

Per KaziEbadul Haque J : Writ petition is an extraordinary remedy provided by the HighCourt Division to an aggrieved person when no other equally efficacious remedyis provided by law to him because whenever there is a wrong done to a person heshould have a remedy against the same.

Bangladeshand others vs Mizanur Rahman 52 DLR (AD) 149.

Articles 102(1) & 117(2)–

A person whointends to invoke fundamental right for challenging the vires of a law willseek his remedy under Article 102(1 ), but in all other cases he will berequired to seek remedy under Article 17(2) of the Constitution in servicematter.

Ali HossainFakir and 5 others vs Government of the People's Republic of Bangladesh andothers 50 DLR 231.

Article 102(1) & (2)–

Thealternative remedy does not bar granting of relief in an application underArticle l 02(1) of the Constitution but such remedy may stand as a bar in anapplication under Article 102(2) of the Constitution.

Rafique–ul–Huqvs Bangladesh 44 DLR 398.

Articles 102(1) & 117(2)–

Jurisdictionof Administrative Tribunal– It can strike down an order for violation ofnatural justice and for infringement of fundamental rights but it cannot strikedown any bar or rule on the ground of its constitutionality. Duty of court isto see the right given under Article 102(1) is not frittered away or misused.

MujiburRahman vs Bangladesh 44 DLR(AD) 111.

Article 102(1)(2)–

Since BangladeshRetired Government Servants Welfare Association is an association for lookingafter the common interests of all retired government employees, the Associationis entitled to ventilate their interests before the Court in the form of publicinterest litigation.

RetiredGovt. Employees vs Bangladesh 46 DLR 426.

Article 102(1)(2)(a)–

Environmental Pollution– In view of the factthat the Election Commission has issued necessary direction, the citycorporation has taken steps for implementation of the direction and theGovernment also gives assurance to the same effect, further direction by thecourt for observing election rules (towards keeping environment pollution–free)is not necessary, although the court feels that it is desirable to mitigate theenvironmental pollution as alleged by the Bangladesh Environmental LawyersAssociation.

BangladeshEnvironmental Lawyers Association vs Election Commission & others 46 DLR235.

Article 102(1)(2)(a)(i) & (ii)–

"Personaggrieved"–Question of locus standi to file writ petition– WhetherBangladesh Sangbadpatra Parishad, a registered association of owners of thenewspapers and newspaper organisations in Bangladesh, is competent to challengethe validity of the constitution of Wage Board and its authority of fixingminimum wages for newspapers employees.

Held: In the facts and circumstances of the case, the petitionerBangladesh Sangbadpatra Parishad is not a "person aggrieved" toquestion the award of Wage Board or the connected law, as it has nothing tolose or win by the impugned award. It is the owners of newspapers and theemployees who are affected by the award and not Bangladesh SangbadpatraParishad. This Parishad may represent the employers anywhere but it has nolocus standi to invoke the jurisdiction of this Court under Article 102 of theConstitution.

BangladeshSangbadpatra Parishad vs Bangladesh 43 DLR 424.

Article 102(1)(2)(a)(ii)–

Inclusion ofthe disputed property in the list of abandoned properties by the Gazettenotification having been found to be without jurisdiction, the notification isin violation of the petitioner's right to hold property. Even if hisfundamental right would not have been affected his writ petition would lieinasmuch as the alternative remedy of invoking the jurisdiction of the Court ofSettlement became non–existent in the meantime.

AlhajMohammad Rahimuddin Bharsha vs Bangladesh represented by the Secretary of theMinistry of Works and another 46 DLR 130.

Article 102(1)(2)(a)(b)–

When a writcan be issued for the enforcement of the fundamental rights on the applicationof an aggrieved person.

ConforceLimited vs Titas Gas Transmission 42 DLR 33.

Article 102(1)(2)(5) & 152–

BangladeshRetired Government Servants Welfare Association is an association registeredunder the Voluntary Social Welfare Agencies (Registration and Control)Ordinance, 1961 (Ordinance No. XLVI of 1961). It, therefore, appears that itsactivities are authorised by the above Ordinance and, as such, this associationcan be deemed to be a body within the meaning of the definition of"statutory public authority" as defined in Article 152 of theConstitution. So, by operation of Clause (5) of Article 102 of the Constitutionthis association is a "person" within the meaning of clause (1) andof clause (2) of Article 102 of the Constitution.

RetiredGovernment Employees vs Bangladesh 46 DLR 426.

Article 102(1)(5)–

"Exhaustionrule'– No one is entitled to move the Court for a supposed or threatened injuryuntil all the available remedies of the administrative authorities have beenexhausted including appeal to the administrative superior. The 'exhaustionrule' cannot be avoided on the ground of inseparable injury or expeditiousnessof judicial remedy. After exhausting all available remedies the petitioner canattempt to move this Court for enforcement of fundamental rights.

Abdul HannanKhan vs Ministry of Home Affairs 43 DLR 131.

Article 102(2)–

Writjurisdiction and inherent jurisdiction of the High Court Division,applicability of–If there was any statutory provision of appeal and revisionfor setting aside the proceedings in question against the petitioner, then thequestion whether any equally efficacious adequate alternative remedy isavailable to him would act as a bar to move the High Court Division under thewrit jurisdiction. Inherent jurisdiction of the High Court Division undersection 561A CrPC cannot be said to be an alternative remedy to the Court'swrit jurisdiction.

Anisul IslamMahmood vs Bangladesh 44 DLR 1.

Article 102(2)–

Since thepetitioner did not avail of the alternative forum of appeal as provided in theCustoms Act and the said forum being an equally efficacious one for his remedy,the Rule obtained in this case should be discharged.

DeliciaDairy Food Ltd vs Collector of Customs and others 51DLR381.

Article 102(2)–

Provision ofArticle 102(2) or any other provision of the Constitution do not preclude theHigh Court Division either to reconsider or to review the correctness of itsjudgment upon fresh material(s).

SerajuddinAhmed and others vs AKM Saiful Alam and others 56 DLR (AD) 41.

Article 102(2) &(1)–

Thealternative remedy does not bar granting of relief in an application underArticle 102( 1) of the Constitution but such remedy may stand as a bar in anapplication under Article 102(2) of the Constitution.

Rafique–ul–Huqvs Bangladesh 44 DLR 398.

Article 102(2) and (5)–

The word"Persea" – What it connotes–An Adminstrative Tribunal is not a'person 'within the meaning of Article 102 and as such the same is not underthe High Court's writ jurisdiction contemplated in Article 102.

Dr MdAbdullahel Based Shah vs The Secretary, Ministry of Health 38 DLR 409.

Articles 102(2) & 117–

Maintainabilityof writ petition in service matter–It is found from the facts of the writpetitions that the question of fundamental right invoked therein has been somixed up with the facts and statutory rules that the question of fundamentalright cannot be extricated for exclusive consideration in a petition forenforcement of fundamental right. Therefore, the High Court Division rightlyheld the writ petitions to be maintainable under Article 102(2).

Bangladeshvs Md Azizur Rahman 46 DLR (AD) 19.

Article 102(2)( a )–

ChittagongAuthority has in exercise of its statutory power floated tender for thepurchase of machineries for capital investment and as such it cannot be saidthat the transaction is an ordinary trading transaction.

SumikinBussan Corporation vs Chittagong Port Authority and others 53 DLR 599

Articles 102(2)(a) & 152(2)–

A writpetition for orders directing persons performing any functions other than thoseof the Republic or of a local authority is not maintainable. Such petitionagainst the Bangladesh Diabetic Association which is not performing anyfunction in connection with the affairs of the Republic or of a local authorityas defined under the General Clauses Act is summarily rejected.

Manjurul Huqvs Bangladesh 44 DLR 239.

Article 102(2)(a)(i)–

Mandamus,requirement of– In order to enforce the performance by public bodies of anypublic duty by mandamus, the applicant must have a specific legal right toinsist upon such performance.

NationalEngineers vs Ministry of Defence 44 DLR (AD) 179.

Article 102(2)(a)(i)–

The writ ofmandamus can be issued for enforcing the performance of duty by Government orits officials only when they are under a legal obligation towards a subject tocarry out specific ministerial duties imposed by law. The Government is under a'legal obligation' towards the respondents" to carry out specificministerial duties", thereby imposed upon. them by law, namely, "tocomplete the formalities to transfer the mill".

Secretary,Ministry of Industries vs Saleh Ahmed & others 46 DLR (AD) 148.

Article 102(2)(a)(i)(ii)–

Terminationof service by way of punishment and without show cause notice is of no legaleffect.

ManjururRashid vs Rural Electrification Board 46 DLR 505.

Article 102(2)(a)(ii)–

Certiorari, principle of– The High CourtDivision can intervene to prevent an Election Tribunal from exceeding itsjurisdiction or from working by travelling beyond its jurisdiction. The courtwould be empowered to ·prevent such a tribunal from going wrong in law but thatis not the same thing as correcting a decision or an order merely because it iserroneous. A tribunal may decide a point of law or pass an order in decidingsome issue keeping itself within jurisdiction though deciding the issuewrongly. Such error would not be an error for interference under certiorarithough the same could be examined in an appeal.

Mustasim Alivs Abdul Motalib and others 45 DLR 733.

Article 102(2)(a)(ii)–

Maintainabilityof writ petition against GrameenPhone–The service agreement 'entered into byand between the subscribers and GrameenPhone is not an ordinary tradingagreement but a contract for providing mobile telephone services byGrameenPhone as an agent and licensee of the Government. Any act ofGrameenPhone in breach of the contract or showing want of transparency on itspart as complained of by the petitioner is accountable in writ jurisdiction.

ZakirHossain Munshi vs Government of the People's Republic of Bangladesh 55 DLR 130.

Article 102(2)(a)(ii)–

The HighCourt Division acting under Article 102(2)(a)(ii) can only make a declaratory orderand nothing more and unless it is required by law to do it cannot direct anyauthority to do a particular thing.

Bangladesh,represented by Secretary, Establishment Division and others vs MahbubuddinAhmed 50 DLR (AD) 154.

Article 102(2)(a)(ii)–

"Personaggrieved"—Locus standi

In a writ ofcertiorari the petitioner must establish that by the act done either hisconstitutional right or any legal right has been invaded and that he has adirect and substantial interest in the matter.

Raufique(Md) Hossain vs Speaker, Bangladesh Parliament and others 47 DLR 361.

Articles 102(2)(a)(ii)–

Merependency of the Partition Suit cannot be a ground for refusing mutation of thedisputed properties in the names of the petitioners.

DebeshChandra Bhattacharya and others vs Government of Bangladesh and others 56 DLR525.

Article 102(2)(a)(ii) & 102(2)(b)(i)–

Maintainabilityof writ petition challenging legality of the order of detention after releaseof detenu– The petitioner being an aggrieved person along with otherschallenged the validity of the transaction made during his detention periodtouching the transfer of the Mill of the Company of which he was the ManagingDirector. If the order of detention remained unchallenged it may be usedagainst him which may create obstacle in the way of his getting proper remedy.No other Court other than this Court under Article 102 of the Constitution hasjurisdiction in the matter.

Any suit orother proceeding may be taken in any appropriate Court for anything done not ingood faith. The impugned order has not therefore become infructuous and therelief prayed for is not for academic purpose. In this view the writ petitionis quite maintainable and the petitioner is entitled to the declaration prayedfor.

Mirza AliAshraf vs State 43 DLR 144.

Article 102(2)(a) or (b)–

Mere passingof an order of detention which has not gone beyond the official record cannotbe said to have been made curtailing the personal liberty of the petitioner andcannot be challenged under the writ jurisdiction.

Mohammad Alivs Government of the People's Republic of Bangladesh, represented by theSecretary, Ministry of Home Affiars, Bangladesh Secretariat and others 47 DLR350.

Article 102(2)(b)–

Kidnappingof children –Habeas Corpus–Question of maintainability– Provision of the Article is very wide innature as it provides that any person and not only an aggrieved person can taketo the notice of the court that somebody is illegally detained by any personand the court shall, after being satisfied, direct the person to be set atlibrety at once. A petition in the nature of habeas corpus for the custody of aminor would also be equally competent without sending the petitioner to exhaustremedy before the Family Court or under The Guardians and Wards Act or othercriminal Court.

Sharon LailyBegum Jalil vs Abdul Jalil and others 48 DLR 460.

Articles 102(2)(b) & 31–

Everycitizen has an inalienable right to be treated in accordance with law–mereinsertion of a section of some law in the order of detention is not enough. Theprovision of law must be strictly followed. Under Article 102(2 )(b) of the·Constitution the Court is to be satisfied that the detenu is not being held incustody without lawful authority–the Court is to see whether the grounds ofdetention supplied to the detenu are supported by materials.

FaisalMahbub vs Bangladesh 44 DLR 168.

Article 102(2)(b)(1)–

By givingthe child to the custody of the mother the boy is deemed to be set at libertyfrom unlawful custody (of the father) in exercise of the Court's power underthe writ jurisdiction.

AyeshaKhanam vs Major Sabbir Ahmed 46 DLR 399.

Article 102(2)(b)(1)–

Judgment bySessions Judge confirming sentence passed by Summary Martial Law Court underMLR 11 in 1978 for accepting remuneration for private visits by the petitioneras a veterinary surgeon is without jurisdiction as the offence complained ofdoes not come within the mischief of illegal gratification.

NazmulHossain (Md) vs State, represented by the Deputy Commissioner, and others 48DLR 417.

Article 102(2)(b)(i)–

Habeascorpus– decision of foreign jurisdictions. In view of the wider jurisdictionalapproach this court has taken in habeas corpus matters the decision of foreignjurisdictions may not be always helpful to us. We may benefit from some well–knownearlier decisions for their persuasive value.

Nasrin KaderSiddiqui vs Bangladesh 44 DLR (AD) 16.

Article 102(2)(b)(i)–

Custody onthe plea of conviction–Where a prisoner is in custody on the basis of an orderof conviction the onus of the respondent is discharged as soon as the returnrelating to the appellant's custody shows that there is an order of convictionjustifying the custody. But the conviction is to be placed before the court forits satisfaction whether the irregularity in it can be overlooked. The warrantof commitment issued by one not authorised under the law can hardly prove theconviction.

Nasrin KaderSiddiqui vs Bangladesh 44 DLR (AD) 16.

Article I02(2)(b)(i)–

A husbandhas a right to the custody of the wife and a wife has a right to remain withthe husband. This is the ordinary law of the country. The husband would begiven the protection of the law and so also his wife though she is a Kuwaitinational. That being the position, she is directed to be released from PoliceLine and be directed to be allowed to go wherever she would like to.

Nur Ahmedand another vs Bangladesh and others 48 DLR 275.

Article 102(2)(b )(i) –

If it ismanifest from the writ petition itself that the cause or manner of detentionstands adequately explained and justifed on the face of it, the respondentsneed not file an affidavit–in–opposition and may support the detention orallyrelying on the petition itself.

Nasima Begumvs. Government of the People's Republic of Bangladesh, represented by theSecretary, Ministry of Home Affairs and others 49 DLR (AD) 102.

Article 102(2)(b)(i)–

Rejection ofwrit petitions against criminal proceedings on grounds of availability ofalternative remedy by way of quashing of the proceedings cannot be a baragainst further writ petitions against the same criminal proceedings when thevery legality of the institution of the proceedings have been challenged.

ShahriarRashid Khan vs Bangladesh, represented by the Secretary, Ministry of Law andParliamentary Affairs and others 49 DLR 133.

Article 102(2)(b)(i)–

A preventivedetention is the deprivation of the liberty ofa citizen, which right should notbe taken away in an arbitrary manner. So this Court enjoys power to review theactions of the detaining authority under Articles 102(2)(b )(i) of theConstitution and under section 491 of the Code.

AnwarHossain (Md) and others vs State and others 55 DLR 643.

Article 102(2)(b)(ii)–

Writ of quowarranto –The election of a candidate could not be challenged under Article 102of Constitution but when the candidate after being elected assumes the officeof Chairman or other Public Office then any person can invoke the provision ofsub–article 2(b)(ii) of Article 102.

Farid Mia vsAmjad Ali 42 DLR (AD) 13.

Article 102(2)(b)(ii)–

Sub–Article(2)(b)(ii) of Article 102 of theConstitution provides that person holding or purported to hold a public officemay be required to show under what authority he claims to hold that office.

Warish Miahvs Secretary, Ministry of Local Government 41 DLR 51.

Article 102(2)(b)(ii)–

Butprinciple of quo warranto can be applied in case of a disqualified candidatewho has his name in Gazette notified and on his taking oath of office. Hisright to office is created under law from that time.

Warish Miahvs Secretary, Ministry of Local Government 41 DLR 51.

Article 102(2)(b)(ii)–

Candidatewho has been declared as elected but his name has not been Gazette notified orhe has not taken oath of office, direction in the nature of quo warranto cannotbe issued against him.

Warish Miahvs Secretary, Ministry of Local Government 41 DLR 51.

Article 102(2)(b)(ii)–

Writ of quowarranto– Court is justified in issuing such writ in order to get informationfrom the respodnent Nos. 3–5 as to how they cling to their office withoutperformance of duties and obligation attached to such office.

AnwarHossain Khan vs Speaker of Bangladesh Sangsad Bhavan and others 47 DLR 42.

Article 102(2)(b)(ii)–

A personwill be found to hold an office without lawful authority, if he is notqualified to hold the office or some mandatory provision of law has beenviolated in making his appointment or when the appointment has been made by aperson who has no authority to do so.

Shamsul HuqChowdhury vs Justice Md Abdur Rouf and others 49 DLR 176.

Article 102(2)(b)(ii)–

Quo warranto–A writ of quo warranto cannot be indulged in by a person to serve the ulteriorpurpose of another individual.

Shaikh (Md)Obaidullah Raihan vs Sayed Shahidul Haque Jamal and others 54 DLR 280.

Articles 102(2)(b)(ii) and 152–

The words"public office" in the Article 102(2)(b)(ii) mean persons holdingconstitutional and elected offices and not the persons holding any office inthe statutory authorities entrusted with the conduct and management of thebusiness of the Government.

Abdur Rahman(Md) vs Group Captain (Retd) Shamim Hossain and others 49 DLR628.

Article 102(3)–

Granting ofan interim order under Article 102 is not an absolute plenary power– It istotally prohibitive in relation to certain laws.

Commissionerof Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129.

Article 103(3)–

Considerationof evidence afresh on a point missed by the petitioner before the High CourtDivision is not a good point for granting leave.

NarayanChandra Das and others vs Abdur Jabbar Dewan and others 52 DLR (AD) 35.

Article 102(4)–

To obtain aninterim order, a writ petitioner must not only make out a prima facie case, buta strong prima facie case.

Commissionerof Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129.

Article 102(4)–

It is in thepublic interest to protect private interest which stands in the danger of beingirretrievably damaged or faces extinction.

Commissionerof Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129.

Article 102(4)–

An interimorder can also be passed when the order under challenge is shown to suffer froman absolute lack of jurisdiction (as distinct from a mere difference ofinterpretation between various relevant authorities or between a relevantauthority and the writ petitioner) or clear or patent excess of jurisdiction orpatent mala fide without requirement of further proof.

Commissionerof Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129.

Article 102(4)–

Regard forthe public welfare is the highest law and in each case the High Court Divisionwill consider whether in spite of prima facie case and balance of conveniencethe individual interest should be subjugated to public interest.

Commissionerof Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129.

Article 102(4)–

An analysisof clause (4) brings into sharp focus the definite constraints within which theHigh Court Division has to pass an interim order under clause (I) or sub–clause(a) of clause (2) of Article 102 of the Constitution.

Commissionerof Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129.

Article 102(4)–

Personalguarantee is a very weak and uncertain security which should be avoided in thebest interest of public revenue.

Commissionerof Customs, Mongla Customs House and others vs SARC Enterprise 51 DLR (AD) 165.

Article 102(4)(1)(a)(b)–

The HighCourt Division will not consider whether an interim order will actuallyprejudice or interfere with the implementation of any development programme orwork or will actually be otherwise harmful to the public interest, but willonly consider whether such interim order "is likely to have" the saideffect.

Commissionerof Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129.

Article 102(4)(1)(b)–

Theconditions precedent for the exercise of this power are mandatory, notdirectory.

Commissionerof Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129.

Article 102(4)(1)(b)–

A"reasonable notice" means a reasonable length of time within which itis possible and feasible for the Attorney–General to obtain instructions fromrelevant quarters.

Commissionerof Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129.

Article l02(4)(1)(b)–

What isreasonable notice will depend upon the facts and circumstances of each case,but if the AttorneyGeneral alleges and proves to the satisfaction of the Courtthat he was not given reasonable notice of the application, one of thecondition precedents for the exercise of the power is not fulfilled and theinterim order renders itself liable to interference.

Commissionerof Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129.

Article 102(4)(1)(b)–

Theappearance of the Attorney–General before the Court is only for the purpose ofassisting the Court in forming its satisfaction. But satisfaction is anindependent constitutional obligation of the High Court Division and it doesnot depend upon the appearance or non–appearance of the Attorney General.

Commissionerof Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129.

Article 102(5)–

A statutorypublic authority is a 'person' within the meaning of Article I 02(5) of theConstitution– The respondent being a subsidiary of the parent Corporation(BOGC) is attracted within the jurisdiction of Article 102 of the Constitution.

ConforceLimited vs Titas Gas Transmission 42 DLR 33.

Article 102(5) & 117–

High CourtDivision has no jurisdiction to entertain any proceeding or make any order inrespect of any matter falling within the jurisdiction of AdministrativeTribunals. In the instant case we have already found that the petitioner havingheld a post in the disciplined force which is a . civil post and, as such, hisremedy lies before the Administrative Tribunal set up under the provisions ofthe Constitution and the order of dismissal of the petitioner from his servicein the Republic could be assailed before the Administrative Tribunal set up forthe purpose.

Ayub Ali vsBangladesh 46DLR191.

Articles 102(5) and 152–

Petitionerbelonging to disciplined force discharged from service by an order of an individualofficer–They were not dealt with by the Court or TribunalWrit is maintainable.

Md FazlurRahman vs Government of Bangladesh, Ministry of Home Affairs 41DLR459.

Articles 102(5) and 152(2)–

'Person'occurring in sub–article (5) of Article 102– Meaning of–'Person' occurring insection 3(39) of General Clauses Act, 1897 shall include any company orassociation or body of individuals whether incorporated or not.

ConforceLimited vs Titas Gas Transmission 42 DLR 33.

Article 102 Paras 3A & 18 4th Sch.–

TheIndemnity Ordinance of 1975 was continuing as an existing law along with otherlaws, after withdrawal of Martial Law, being protected and saved by the terms"other laws" as contained in paragraphs 3A and 18 of the 4th Scheduleof the Constitution, and it is subject to judicial review of this Courtwhenever it is challenged.

ShahriarRashid Khan vs. Bangladesh, represented by the Secretary, Ministry of Law andParliamentary Affairs and others 49 DLR 133.

Article 102 & Para 19(2) 4th Sch –

Jurisdictionof this Division to examine the validity or otherwise of an order passed underMartial Law Order No. 9 of 1982 has been ousted in view of paragraph No. 19(2)of the Fourth Schedule to the Constitution as enacted by the Constitution(Seventh Amendment) Act, 1986.

LutforRahman vs Divisional Mechanical Engineer and others 51 DLR 133.

Constitution of Bangladesh, 1972 [Article 103 – Article 125]

Constitutionof Bangladesh, 1972

Article 103 –

Constitutionalobligation of the Supreme Court (Appellate Division) is to do complete justicein the cause. It has become imperative upon the Court to give due considerationto the Annexures to clarify the factual position.

Bangladesh& others vs Dhaka Lodge Welfare Society 40 DLR (AD) 86.

Article 103 –

Appeal–Question of fact– A question of fact or mixed question of fact and Jaw ought tobe raised in die High Court Division for a proceeding under Article 102 of theConstitution. An appellant should not ordinarily be allowed to convert theAppellate Division into a court of first instance.

Nasrin KaderSiddiqui vs Bangladesh 44 DLR (AD) 16.

Article 103–

Under the newdispensation that Article 103 of the Constitution shall apply in relation toAdministrative Appellate Tribunal the petitioners have only the right to seekleave for appeal. The Court's power under clause (3) of Article 103 is verywide–question of retrospectivity or prospectivity of section 6A of the Act of1981 has got no relevance.

BangladeshBank and another vs Administrative Appellate Tribunal 44 DLR (AD) 239.

Article 103–

In view ofthe special nature of services rendered by its employees the organizationalset–up of trade unions of the Biman or any other organisation containingsimilar professional groups should receive special consideration so as to meettheir special situations. The authority may consider whether, consistent withconstitutional provisions and the statute, their special needs in respect oftrade union matters can be met by an appropriate legislation. Meanwhileexisting agreements between the unions and the Biman shall remain operative forthe duration of the respective agreements.

Secretary ofAircraft Engineers of Bangladesh & another vs Registrar of Trade Unions andothers 45 DLR (AD) 122.

Article 103–

As a rulethe Appellate Division does not generally interfere with orders passed in thediscretion of the Court unless to prevent a perverse order.

Dr WaliarRahman vs Bangladesh and others 50 DLR (AD) 26.

Article 103–

Nobodyshould suffer for any wrong done or omission made by a court.

Shahidullahvs Md Yunus 50 DLR (AD) 164.

Article 103–

The accusedwas acquitted and state petitioner did not take any step for hearing of thepetition in the last 5 years. In view of the above the impugned judgment is notto be interfered with.

State vsShahjahan 53 DLR (AD) 58.

Article 103–

Though theleave petition was filed in time, the State did not take any step during theperiod of about seven years to get it heard. On this very account the leavepetition must be rejected.

State vs AbuMusa@ Musaya@ Shapir Bap & ors 53 DLR (AD) 81.

Article 103–

This Divisiondoes not interfere on the ground that upon evidence on record a differentconclusion might be arrived at from those upon which the High Court Divisionacquitted the accused persons.

State vs AbuMusa @ Musaya@ Shapir Bap & ors 53 DLR (AD) 81

Article 103–

Leave toappeal cannot be granted in a case filed just to delay the disposal of theexecution proceeding and to continue in an unauthorised possession.

ShahanaraKhatun and another vs Abu Taleb Pramanik and others 53 DLR(AD) 90.

Article 103–

No usefulpurpose would be served in granting leave in this case. The petitioner mayagitate his case of compromise before the trial Court with liberty to adduceevidence.

Sultana JuteMills Limited vs Court of Subordinate Judge and Artha Rin Adalat and others 53DLR (AD) 91.

Article 103–

If the HighCourt Division is satisfied by exercising its discretion judicially that thealternative remedy provided in a particular case is not adequate and effective,then, such discretion can hardly be interfered with.

Universityof Dhaka and another vs Professor AK Monwaruddin Ahmed 52 DLR (AD) 17.

Article 103–

A discretiononce exercised without any opposition will not be interfered with simply on theground of availability of alternative efficacious remedy especially when thedecision sought to be appealed from does not suffer from any infirmity of law.

Universityof Dhaka and another vs Professor AK Monwaruddin Ahmed 52 DLR (AD) 17.

Article 103–

To beginwith, it is an established principle of law and practice that a party shouldnot be heard on a ground on which leave was not granted, although there may beexceptions in the exigencies of justice. (see John E Brownlee vs VivianMacMillan, AIR 1940 PC 219 and 1975 SCMR 16).

SanaullahKhan (Md) vs Safura Khatun and others 52 DLR (AD) 39.

Article 103–

The date ofconviction and sentence pronounced by the trial Court should not be taken to bethe starting point for the disqualification against the convict sitting Memberon account of such conviction in a criminal case involving moral turpitude.

HussainMuhammad Ershad vs Abdul Muqtadir Chowdhury and another 53 DLR 569.

Articles 103 & 104–

To meet theends of justice the conviction under section 4 of the AntiTerrorism Act ismaintained but the sentence of rigorous imprisonment for life is modified to I0 years rigorous imprisonment with fine as ordered.

JahangirAlam (Md) alias Zakir vs State 56 DLR (AD) 217.

Article 103(1) –

When aSingle Company Judge of the High Court Division is exercising power under section38 of the Companies Act an appeal from its decision has to be taken by way ofleave to the Appellate Division under Article 103(1) of the Constitution.

Moqbul Ahmedand another vs Ahmed Impex (Pvt) Ltd and others 48 DLR (AD) 82.

Article 103(1) –

Since thepetitioner has avenues open for both hearing of the Rule and the injunctionmatter in the High Court Division itself no interference is called for.

Bangladesh,represented by the Secretary, Ministry of Establishment vs Khondaker TajuddinAhmed and others 51 DLR (AD) 64.

Article 103(2)(a) –

Certificatefor appeal – The High Court Division while granting certificate is to indicateapplication of judicial mind to the question whether a case is fit one forappeal to the Appellate Division. The grant of a certificate of fitness forappeal is a judicial function requiring care and cautiousness of a judicialmind. It is not a mere mechanical act. The High Court Division fell into anoft–repeated avoidable error in granting a certificate in this case.

Qazi Kamalvs Rajdhani Unnayan Kartripakha 44 DLR (AD) 291.

Articles 103(3)–

A surpriseargument that does not find place either in the impugned judgment or in therevision petition before the High Court Division is not entertainable.

Abdul Kaiyum(Md) vs Krishnadhan Banik and others 49 DLR (AD) 140.

Article 104–

Peititionersought to secure transfer of civil cases from courts situated withinterritorial jurisdiction of one Permanent Bench to that of another PermanentBench.

Held: Astransfer of a case does not come within the ambit of Article I 04 of theConstitution, Supreme Court, Appellate Division cannot pass any order for doingcompletejustice to a case including the order for transfer under Article I 04of the Constitution.

Sk AKM AbdulMannan vs Raj Textile Mill Ltd 42 DLR (AD) 11.

Article 104–

The words"doing complete justice" as occurs in Article 104 are of greatsignificance. Their importance cannot be whittled down. Nor can the Court giveup even a fraction of this power. It is a great power with which the Court hasbeen armed.

MahbuburRahman Sikder vs Mujibur Rahman Sikder 37 DLR (AD) 145.

Article 104–

Thisprovision should not be resorted to in the case of laches on the part of afinancial institution like a Bank, which should better take action against itsown wrongdoers, if any.

There is, ofcourse, some substance in the argument that the order of the trial Courtstriking off the names of the defendants–guarantors is improper, but it waspassed in presence of the Bank's representative; no action was taken in time toseek remedy from the superior Court within the period of about ten months. Itappears that the impugned order of trial Court was obtained and the applicationfor correction of the order was delayed, at the connivance of the Bank'sofficials concerned. The High Court Division, therefore, did not do any wrongin rejecting the application for revision on the ground of limitation.

Rupali Bankvs Tobacco Industries Ltd. 46 DLR (AD) 190.

Article 104–

Completejustice–Relief sought should ordinarily be considered within the framework ofthe suit. In the name of complete justice Appellate Division may not grantrelief which the court of first instance will not be able under the law togrant. Article 104 has invested the last court of the country with wide power,so it may do complete justice in an appropriate case. If a substantial justiceunder law and on undisputed facts can be made so that the parties may not bepushed to further litigation, then a recourse to this provision may bejustified.

AFMNaziruddin vs Mrs. Hameeda Banu 45 DLR (AD) 39.

Article 104–

The HighCourt Division wrongly used the words "for doing complete justice"between the parties. It is only the Appellate Division which has got the powerunder Article 104 of the Constitution to issue such directions, orders, decreesor writs as may be necessary for doing complete justice in any matter pendingbefore it.

ShahanaHossain vs AKM Asaduzzaman 47 DLR (AD) 155.

Article 104–

No remedy isavailable to the appellant though a gross injustice has been done to him for nofault or ]aches of his own. A valuable right accrued to the appellant in lawand fact should not be lost. In that view it is a most appropriate case for theCourt to exercise our jurisdiction under Article 104.

RaziulHassan vs Badiuzzaman Khan and others 48 DLR (AD) 71.

Article 104 –

It is onlythe Appellate Division which has been bestowed with the jurisdiction of"doing complete justice in any cause or matter pending before it".This jurisdiction is not available to either the High Court Division or theSubordinate Courts.

NationalBoard of Revenue vs Nasrin Banu and 5 others 48 DLR (AD) 171.

Article 104 –

Doingcomplete justiceAlthough reluctant to interfere with the concurrent finding offact of the courts below, the Appellate Division of the Supreme Court comes upto interfere with such findings with a view to doing complete justice bypreventing abuse of the process of law.

Governmentof Bangladesh and another vs Mashiur Rahman and others 50 DLR (AD) 205.

Article 104–

It cannot besaid that the petitioner could not file the writ petition because the order ofinjunction passed by the trial Court was stayed. It was not quite proper toaward a big amount as cost, particularly when it was an ex parte hearing.

Al–HelalRice Mills Ltd vs Bangladesh Shilpa Rin Sangstha 51 DLR (AD) 51.

Article 104–

By theimpugned judgment justice having been done it is not to be interfered with ontechnical ground of limitation.

Governmentof Bangladesh vs Chairman, Court of Settlement and others 53 DLR (AD) 26.

Article 104–

The impugnedjudgment on the factual questions raised for the first. time cannot beinterfered with.

Monir Ahmedand ors vs Forest Research Institute, Chittagong and ors 53 DLR (AD)68.

Articles 104–

If thiscourt finds it necessary within the meaning of 'complete justice' it may, inview of the power conferred upon it under Article 104 of the Constitution,consider an affidavit and refer to the facts contained therein even though theHigh Court Division refrained from doing so.

EkusheyTelevision Ltd and another vs Dr Chowdhury Mahmood Hasan and ors 55 DLR (AD)26.

Articles l 04 & 105–

EkusheyTelevision Ltd and another vs Dr Chowdhury MahmoodHasan and ors 55 DLR (AD) 26.

Articles 104 & 105–

The taskbefore the court is not only to weigh or evaluate or reflect profound concernsand views but more, to ascertain and apply the law of the land on review as itnow stands understood.

EkusheyTelevision Ltd and another vs Dr Chowdhury Mahmood Hasan and ors 55 DLR (AD)26.

Articles 104 & 105–

Thefundamental is that an error is necessary to be a ground for review but it mustbe one which is apparent on the face of the record, and so obvious. thatkeeping it on the record will be legally wrong.

EkusheyTelevision Ltd and another vs Dr Chowdhury Mahmood Hasan and ors 55 DLR (AD)26.

Articles 104 & 105–

If it can beshown that the situation differs from thatwhich was taken for granted at thetime of hearing of the appeal or the petitions for leave to appeal the decisionin a review petition may be different. But no alternative situations werepresented· before the Court at the hearing of the review petitions.

EkusheyTelevision Ltd and another vs Dr Chowdhury Mahmood Hasan 55 DLR (AD) 26.

Articles 104 & l 05–

Theelaborate arguments that have been advanced were done at the leave petitionsbut those have come to an end with 'the rejection of the leave petitions by thepetitioners and cannot be reopened in a review petition.

EkusheyTelevision Ltd and another vs Dr Chowdhury Mahmood Hasan and ors 55 DLR (AD)26.

Articles 104 & 105–

What isrequired to be protected is the interest of the general public from abuse ofpower by the executive, the most eloquent aspect of this case–In publicinterest litigation the court will lean to protect the interest of the generalpublic and the rule of law vis–a–vis the private interest–Where the rule of lawcomes into conflict with third party interest the rule of law will, of course,prevail.

EkusheyTelevision Ltd and another vs Dr Chowdhury Mahmood Hasan and ors 55 DLR (AD)26.

Article 105–

AppellateDivision of the Supreme Court of Bangladesh has power to review its ownjudgment acting on its own.

MabuburRahman Sikder vs Mujibur Rahman Sikder 37 DLR (AD) 145.

Article 105–

There couldbe no ground for review once the case was disposed of on fact and law as well.

Review of ajudgment can be made where there is an error apparent on the face of the recordor that the Court's attention was not drawn to any particular statutoryprovision of law for which an error has crept in the judgment.

Idris AliBhuiyan vs Enamul Haque 43 DLR (AD) 12.

Article 105–

The ReviewPetition that has been filed and the grounds taken indicate that the petitionernow intends a rehearing of whole matter which is not permissible under Article105 of the Constitution. Once the matter is disposed of on merit without anynew material the same cannot be reconsidered.

HefazeturRahman vs Kazi Anowar Hossain and others 53 DLR (AD) 89.

Article 105–

Merelyreversing the order basing on the evidence on record would render the order inreview without jurisdiction. Similarly, an error which has to be established bya long process of reasoning on points where there may conceivably be twoopinions can hardly be said to be an error apparent on ·the face of the record.

Ershad AliSikder (Md) vs State 56 DLR (AD) 87.

Article 106–

ThePresident's satisfaction that a question of law has arisen, or is likely toarise, and that it is of public importance and that it is expedient to obtainthe opinion of the Supreme Court justifies a Reference at all times under theArticle. Though it is not obligatory upon the Court to give an opinion, it willbe unwilling to decline a reference except for good reasons.

SpecialReference No I of 1995, 47 DLR (AD 111.

Article 107(1)–

So the rulesmust be framed for deciding what class of cases will be heard and such rulesmust be framed by the High Court Division itself subject to Article 107 (I),the Chief Justice then initiates the proposal for the "approval" ofthe Chief Executive namely, the President.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Articles 107(1)(2)(3) and 113–

Constitutionalresponsibility of the Chief Justice to determine which judges are to constitutea Bench or Division of the Supreme Court– Rule making power has been given tothe Supreme Court and the Supreme Court may delegate any of its functions to aDivision of that Court or to one or more Judges.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 108–

Contempt ofCourt–Power of the High Court Division as a court of record to take proceedingfor contempt of court could be restricted by law.

Dr. MdMahiuddin vs Dr. Hasanuzzaman Chowdhury 44 DLR 535.

Article 109–

Underprovisions of Article 109 of the Constitution the High Court Division can callfor the records of any case from any subordinate civil Court and pass anappropriate order if any presiding officer of any such court fails to complywith any direction of the High Court Division made in any case.

State vsFarooq Ahmed, Subordinate Judge 51 DLR 515.

Article 109–

In a casewhere a statute bars entertainment of a revision the exercise of supervisorypower under Article 109 of the Constitution is not available.

Hosne AraBegum and another vs Islami Bank Bangladesh Limited 53 DLR (AD) 9.

Article 109–

The Courtsand tribunals will be under the superintendence and control of the High CourtDivision, being subordinate to it but the control and discipline of personsemployed in the judicial service and magistrates exercising judicial functionsis vested in the President. This distinction stares in the face of ourConstitution. There is a diarchy in our constitutional scheme.

Secretary,Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82.

Article 111–

Bindingeffect of the Judgment of the Supreme Court will be nullified because of theconflicting decisions of two or more Permanent Benches.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 112–

Allauthorities, executive and judicial, in the Republic shall act in aid of theSupreme Court.

TaheraNargis Syed vs Shamsur Rahman, DIG Prisons, Dhaka Central Jail 41 DLR 508.

Article 114–

Theconstitutional implication of this Article is that the subordinate judiciary,unlike the Supreme Court of Bangladesh, is not a creature of the Constitutionbut of law.

Secretary..Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82.

Articles 115 & 116A–

While makingrecruitment rules under Article 115 it has to be borne in mind that Article116A will be meaningless without judicial autonomy. Judicial autonomy requiresthat judicial appointments shall be made on merit by a separate judicialservice commission which may be established either by a statute or by thePresident while framing rules under Article 115.

Secretary,Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82.

Articles 115 & 136–

The judicialservice has a permanent entity as a separate service altogether and it mustalways remain so in order that Chapter 11 of Part VI is not rendered nugatory.

Secretary,Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82.

Article 116–

Not onlywhen a person employed in the judicial service is promoted and or posted toanother post in the judicial service, but also when such person is promoted andor posted to a post outside the judicial service, there is no scope fromcomplying with the requirements of Article 116 of the Constitution.

Aftab Uddin(Md) vs Bangladesh, represented by Secretary, Ministry of Establishment,Government of the People's Republic of Bangladesh and others 48 DLR 1.

Article 116–

There is noescape from the conclusion that this Article applies to persons in the judicialservice whenever such persons are considered for promotion to posts outside thejudicial service.

Aftab Uddin(Md) vs Bangladesh, represented by Secretary, Ministry of Establishment,Government of the People's Republic of Bangladesh and others 48 DLR I.

Article 116–

Article 116applies in case of posting and promotion of persons in the judicial service toany post or position outside the judicial service in the same manner as theirposting and promotion to any post in the judicial service.

Aftab Uddin(Md) vs Bangladesh, represented by Secretary, Ministry of Establishment,Government of the People's Republic of Bangladesh and others 48 DLR 1.

Article 116–

Instances ofomission to consult in the past cannot cure the unconstitutionality of the actsimpugned in the present writ petition.

Aftab Uddin(Md) vs Bangladesh, represented by Secretary, Ministry of Establishment,Government of the People's Republic of Bangladesh and others 48 DLR 1.

Article 116–

WhenElection the Commission accepted the formation of the electoral committee whichwas formed with the approval of the Supreme Court the petitioner has no causeto be apprehensive about the formation of the committee.

BangabirKader Siddiqui, BU vs Government of Bangladesh and ors 54 DLR (AD) 64.

Articles 116A & 136–

While thefunction of the civil administrative executive services is to assist thepolitical executive in formulation of policy and in execution of the policydecisions of the Government of the day, the function of the judicial service isneither of them. It is an independent arm of the Republic which sits onjudgment over parliamentary, executive and quasi–judicial actions, decisions andorders. To equal and to put on the same plane the judicial service with thecivil administrative executive services is to treat two unequals as equals.

Secretary,Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82.

Article 117–

TheAdministrative Tribunals which function under a constitutional mandate have thefullest power to devise its own method and procedure to execute its decisionsand orders when the provisions of CPC cannot be followed.

SaifurRahman vs Secretary, Ministry of Agriculture 41 DLR 538.

Article 117–

Same will becase in matter of superintendence of the subordinate courts because of theabsence of any central organ to discharge this duty.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 117–

Departmentalproceeding against government servant– Administrative Tribunal's jurisdictionto give relief–If the petitioner, a Government servant, can establish a case of'double jeopardy' on facts he can invoke the law under which he is proceededagainst which cannot be opposed to Fundamental Rights and the Tribunal iscompetent to enforce the statute.

Md SerajulIslam vs The Director General of Food 42 DLR (AD) 199.

Article 117–

TheAdministrative Tribunals are not like the High Court Division or the subordinateCourt over which the High Court Division exercises both judicial review andsuperintendence. They are set apart, as sui generis, in a separate chapter. TheParliament can make more tribunals for matters relating to or arising out ofsub–clause (a) of Article 117(1 ).

MujiburRahman vs Bangladesh 44 DLR (AD) 111.

Article 117–

TheConstitution made provisions in Article 117 for conferring state's judicialpowers on some tribunals that may in future cumulate some of the attributionswhich are divided between the formal court system and the growing practice ofadjudication of disputes by tribunals.

MujiburRahman vs Government of Bangladesh and others 44 DLR (AD) 111.

Article 117–

SerajulIslam Thakur and other vs Government of Bangladesh and another 46 DLR 318.

Article 117–

TheAdministrative Tribunal, in exercise of its power under clause (1) of Article117 of the Constitution, cannot knock down a law on the ground of itsunconstitutionality and, as such, it appears that the Administrative Tribunalis not competent to entertain the case in which the petitioners have prayed forknocking down a certain provision of law contained in Annexure–B and Annexure–Cof the writ petition. Since the Administrative Tribunal does not have any jurisdictionto knock down the aforesaid provisions of law we find that it has nojurisdiction to decide this matter, and as such, clause (2) of Article 117 ofthe Constitution ousting the jurisdiction of this Court is not attracted.

Bangladesh Retired Government Employees Welfare Association,represented by its President Kajiluddin Mahmood and others. vs Bangladesh,represented by the Secretary to the Ministry of Finance, Finance Division,Government of Bangladesh and anothers 46 DLR 426.

Article 117–

High CourtDivision has no jurisdiction to entertain any proceeding or make any order inrespect of any matter falling within the jurisdiction of AdministrativeTribunals.

Ayub Ali vsBangladesh 46 DLR 191.

Article 117–

SerajulIslam vs DG Food 43 DLR 237.

Article 117–

In decidingwhether the order in question was one under MLO No. 9, the Tribunal held thatthe order became effective from the date it was passed, the High Court Divisionheld that it did not become effective because of non–communication. For thisexercise the power of judicial review was not necessary. The Tribunal wascompetent to decide the issue.

Bangladeshand others vs Mahbubuddin Ahmed 50 DLR (AD) 154.

Article 117–

Violation ofall kinds of laws is not violation of fundamental right. Violation of terms andconditions of service may indeed be a violation of law, but if a specificremedy is provided in the Constitution for remedy then that specific remedyshall be availed of by the aggrieved person.

Governmentof Bangladesh and Ors vs Mohammad Faruque 51 DLR (AD) 112

Article 117–

Independenceof the subordinate judiciary will in no way be compromised if the members ofthe judicial service are to seek relief before the administrative tribunal inrespect of matters relating to or arising out of their terms and conditions ofservice.

Secretary,Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82.

Article 117–

The HighCourt Division cannot stay the order of transfer of the writ petitioner only onthe ground that the Administrative Tribunal has no authority to pass such anorder.

Governmentof the People's Republic of Bangladesh vs SM Fariduddin 54 DLR (AD) 9.

Articles 117 & 102(2)–

Bangladeshvs Md Azizur Rahman 46 DLR (AD) 19.

Article 117(1)–

Because ofthe non–obstante clause in Article 117(1 ), there can be no grievance on theground that there has been an amalgamation of judicial and non–judicialfunctions or conferral of judicial function on a non–judicial body in violationof the provisions as to the judiciary in the Constitution.

MujiburRahman vs Bangladesh 44 DLR (AD) 111.

Article 117(2)–

Furtherground allowed by the Court to be urged by the appellant. Finding of the Boardof Inquiry– Only the Chief Engineer was competent to draw proceeding butdefendant No. 2(appellant) continued with his litigation in spite of thisfinding–Had the appellate Court's order been accepted by defendant No. 2, thequestion of giving salary during the litigation period would not have arisen.

Courtsobservation on conduct of the business of the Government officer– The presentcase is a sad instance of thoughtless application of disciplinary rules–Correctivemeasures are to be taken coolly even in case of exasperating delinquency inaccording with law–Appellate Court's order granting arrears salary allowed.

ExecutiveEngineer, Public Health vs Mohammad Ali 41 DLR (AD) 64.

Article 117(2)–

"Exhaustionrule"–No one is entitled to move the Court for a supposed or threatenedinjury until all the available remedies of the administrative authorities havebeen exhausted including appeal to the administrative superior. The 'exhaustionrule' cannot be avoided on the ground of irreparable injury or expeditiousnessof judicial remedy. After exhausting all available remedies the petitioner canattempt to move this Court for enforcement of fundamental rights.

Abdul HannanKhan vs Ministry of Home Affairs 43 DLR 131.

Article 117(2)–

Jurisdictionof Administrative Tribunal– Tribunal shall have no power to entertain anapplication unless it is filed within six months of the impugned order. In theinstant suit the impugned order was made 4 years earlier than the date ofincorporation of the petitioner bank in the schedule of the Act. Consequentlythe cause is beyond the jurisdiction of the Tribunal. That being so the suitdoes not come within the mischief of Article 117.

DGM RupaliBank vs Shah Jalal 43 DLR 193.

Article 117(2)–

Return ofplaint in a matter relating to persons in the service of the Republic–Amendmentreplacing a cause of action, after it had ceased to exist, by a new cause ofaction so as to change the nature of the suit and the cause of action will notbe allowed and, if allowed, cannot relate back to the date of filing the suit.Furthermore, the jurisdiction of the civil Court having been vested in theAdministrative Tribunal by the promulgation of special statute the jurisdictionof civil Court in respect of Bank employees has been ousted, and in that viewof the matter, the plaint was rightly returned by the civil Court forpresentation to the proper Tribunal having jurisdiction.

Mansur Alivs Janata Bank 43 DLR 394.

Article 117(2)–

'Exhaustionrule'– No one is entitled to move the Court for a supposed or threatened injuryuntil all the available remedies of the administrative authorities have beenexhausted including appeal to the administrative superior. The 'exhaustionrule' cannot be avoided on the ground of irreparable injury or expeditiousnessof judicial remedy. After exhausting all available remedies the petitioner canattempt to move this Court for enforcement of fundamental rights.

Abdul HannanKhan (Md) vs Secretary, Ministry of Home Affairs, Government of Bangladesh andothers 43 DLR 131.

Article 117(2)–

Jurisdictionof administrative Tribunal– It can strike down an order for violation ofnatural justice and for infringement of fundamental rights but it cannot strikedown any bar or rule on the ground of its constitutionality. Duty of court isto see the right given under Article I 02(1) is not frittered away or misused.

MujiburRahman vs Government of Bangladesh and others 44 DLR (AD) 111.

Article 118–

Forexercising and performing any powers or functions under this Order the actingChief Election Commissioner must get authorization from the Commission itself,otherwise his action under the Order will be coram nonjudice and withoutjurisdiction.

Jatiya Partyvs Election Commission for Bangladesh and others 53 DLR (AD) 38

Articles 118 and 119(2)–

Section 2subsection (7) defines "Election Commission" which means theElection Commission for Bangladesh. The Election Commission of Bangladesh isconstituted under Article 118 of the Constitution. Article 119(2) says that theElection Commission shall perform such functions in addition to those specifiedin clause (I) as may be prescribed by the Constitution or by any other law.

AFM ShahAlam vs Mujibul Haq 41 DLR (AD) 68.

Article 118(1)–

Since thereis no material on record or even any assertion by any of the respondents thatdelegation of power was made by the Chief Election Commissioner the contentionsthat the proceeding taken by the Election Commission vide Annexure–A to thewrit petition suffers from coram non Judice is accepted.

AnwarHossain vs Election Commission of Bangladesh 53 DLR 546.

Article 119–

When the lawis silent, not expressly providing as to what is to be done or not to be donein an election matter, the Election Commission has plenary power to act underArticle 119 which is the reservoir of power for it to ensure fair election.

AfzalHossain vs Chief Election Commissioner 45 DLR 255.

Article 119–

The ElectionCommission has over–all control in election matters and it shall be competentto correct an apparent illegality or to remove misapprehension for the sake offair Election.

AfzalHossain vs Chief Election Commissioner and others 45 DLR 701.

Article 119–

ElectionCommission's inherent power under the provision of 'superintendence, controland direction' should be construed to mean the power to supplement thestatutory rules with the sole purpose of ensuring free and fair election.

AltafHussain vs Abul Kashem 45 DLR (AD) 53.

Article 119–

Question ofvoidability of a legislation and stay of election– For the reasons that he whoseeks equity must do equity and must come with clean hand at the earliestopportunity and that the petitioners slept over the matter for a considerableperiod of time and preferred to challenge the Act only after the promulgationof the Ordinance which has since been repealed and the election was knocking atthe door and all formalities thereof were observed, postponement of election atsuch a stage by an order of stay would put a clog in the way of democraticprocess of transition to Parliamentary system and that the petitioners failedto make out a prim a facie case for ad interim stay and the balance ofconvenience and inconvenience was also in favour of the respondents, and inthat view, without any reference and comment as to the merit of the writpetition, prayer for ad interim stay is refused and the matter be placed beforethe regular Bench on the reopening of the Court for hearing of the substantiveapplication.

Abdus SamadAzad, MP & others vs Bangladesh, through Secretary, Ministry of Law andJustice and others 43 DLR 607.

Article 119(2)–

Even if thepresiding officer or the returning officer did not make any complaint as to themanner of the voting, but from the result, the total votes appeared to havebeen so received by the petitioner figuring 876 and the number of total validvotes being 870, the obvious conclusion is that rigging took place. In suchcircumstances the Election Commission being vested with the power to conductthe election peacefully, fairly and impartially, has rightly interfered withthe election and cancelled the result thereof and ordered for re–polling. TheElection Commission has acted rightly and well within its legal bound whichdoes not call for any interference.

Abdul QuaderFarazi vs Chief Election Commissioner, Bangladesh & ors 50 DLR 636.

Articles 121 & 122(1)–

Electoralroll and basis of franchise–Members for seats reserved exclusively for womenare to be elected by members of the Parliament according to law. President'sOrder 17 of 1973 provides for that law. There is no conflict between theamendment done by Constitution (Tenth Amendment) Act providing for election tothe reserved seats and Articles 121 & 122(1) of the Constitution.

Dr. AhmedHussain vs Bangladesh 44 DLR (AD)109.

Article 122–

Permanentresident of Bangladesh, temporarily residing in the UK having attained the ageof 18 years and not declared by a competent Court to be of unsound mind isentitled to be registered as a voter in Bangladesh.

ATM Ali RezaKhan vs Bangladesh Election Commission and others 50 DLR 58.

Article 122(1) & 65(3)–

Womenmembers –Reservation of seats for them in the Parliament whether violative ofthe basic structure of the Constitution–The reservation of seats exclusivelyfor women members was already there in the Constitution from the very date ofits commencement. Repeal and substitution of previous clause (3) of Article 65by a similar clause (3) in the said Article by the Constitution (TenthAmendment) Act, 1990 (Act No. 38 of 1990) cannot be said to be violative of thebasic structure of the Constitution.

Fazle Rabbivs Election Commissioner 44 DLR 14.

Article 123–

The framersof the Constitution provided in Article 123 a time limit of ninety days forholding of the election by the Election Commission. Therefore, the concept thatas long as an election dispute is not disposed of, there is no vacancy inParliament, is a wrong concept.

MahboobUddin Ahmed vs Bangladesh Election Commissioner, and others 50 DLR 417.

Articles 123 & 125–

Article 123deals with conducting of election once a seat falls casually vacant, whereasthe extent of the prohibition intended to be imposed by Article 125 is meant tobe exercised upon the election dispute, the delimitation of constituencies orthe allotments of seats to such constituencies only.

MahboobUddin Ahmed vs Bangladesh Election Commissioner, and others 50 DLR 417.

Articles 123 & 125–

Once anelection dispute is finally settled, it reaches a point where the result in theelection dispute converges with the result of the by–election and the twowithout assimilating cause a conflict between the provisions of Articles 123and 125. At that point the non obstante clause becomes the determining factor.

MahboobUddin Ahmed vs Bangladesh Election Commissioner, and others 50 DLR 417.

Article 123(4)–

Anynotification under Article 123(4) by the Election Commission for holdingby–election with condition would be unconstitutional being inconsistent withthe provisions and spirit of the said Article.

HussainMuhammad Ershad vs Abdul Muqtadir Chowdhury and another 53 DLR 569.

Constitution of Bangladesh, 1972 [Article 126 - The End]

Constitutionof Bangladesh, 1972

Article 133–

MujibnagarEmployees (Conditions of Service) Rules, 1980 were made for the limited purposeof treating the services rendered by such employees at Mujibnagar and treatingthe period of which the Government could not keep them employed as leavewithout pay. It cannot therefore, be said to be violative of the equalityclause of the Constitution.

MM SahidurRahman vs Government of the People's Republic of Bangladesh though the Secretary,Ministry of Finance, Secretariat Building, Dhaka and others 46 DLR 187.

Article 133–

It is notobligatory for the Parliament to make laws. No Court can similarly direct thePresident to make rules, because the rule–making power of the President isidentical with that of the Parliament.

Bangladeshvs Shafiuddin Ahmed and 2 others 50 DLR (AD) 27.

Article 133–

ThePresident did not illegally assume the power of Parliament while making rulesand regulations for regulating the appointment and conditions of service ofpersons in the service of the Republic and, therefore, did not act withoutjurisdiction.

ShafiuddinAhmed vs Bangladesh 47 DLR 81.

Articles 133, 134, 135 & 152(1)–

Sincecivilian employees connected with Defence have not been mentioned anddifferently dealt with in our Constitution, they are entitled to the protectionunder Article 135 of the Constitution.

SirajulIslam Thakur vs Bangladesh 46 DLR 319.

Articles 133 & 136–

Article 115,133 or 136 does not give either the Parliament or the President the authorityto curtail or diminish the independence of ·the subordinate judiciary byrecourse to subordinate legislation or rules. What cannot be done directly,cannot be done indirectly.

Secretary,Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82.

Articles 133 & 139–

There is noreasonable ground to hold that a Judge of the Supreme Court is in the serviceof the Republic. Therefore, holding of the office of the Chief ElectionCommissioner by a judge does not stand as a bar against his appointment as aJudge of the Appellate Division of the Supreme Court of Bangladesh.

Shamsul HuqChowdhury vs Justice Md Abdur Rauf and others 49 DLR 176.

Articles 133–140 & 152–

'Service ofthe Republic'– Those Articles relate only to the different functions andaffairs of the President and those functions and affairs cannot bring thePresident of Bangladesh within the ambit of the definition 'Service of theRepublic'.

Abu BakkarSiddique vs Justice Shahabuddin Ahmedand others 49 DLR 1.

Article 134–

As malafidevitiates every exercise of power, a malafide exercise of pleasure by thePresident under Article 134 of the Constitution can be brought within thepurview of judicial review, if the other provisions of the Constitution are nota bar.

Rear AdmiralAA Mustafa vs Bangladesh, represented by the Secretary Ministry of Defence,Dhaka 51 DLR (AD) 146

Article 134–

Personsappointed –to the Secretariat of Parliament and the Staff of the Supreme Court,although governed by separate terms and conditions of service, are entitled tothe protection of Article 134, because they are public officers holding oracting in an office of emolument in the service of the Republic.

Secretary,Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82.

Article 134–

Thedefinition of "the service of the Republic" uses the word"Government" in a generic sense. On that ground the members of the judicialservice cannot be excluded from the ambit of "the service of theRepublic".

Secretary,Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82.

Articles 134 & 135–

Doctrine ofPleasure– Members of the defence services as well as persons holding any civilpost in the service of the Republic hold office during the pleasure of thePresident but due to protection given to the latter they are excluded from themischief of the absolute doctrine of pleasure.

SerajulIslam Thakur vs Bangladesh 46 DLR 319.

Article 135–

Servant–Govemmentservant –Serving under the Co–opertivtive Societies, Land Mortgage Bank–Not aGovernment servant.

Aco–operative Society has its own juristic entity–Co–operative Land MortgageBank is not a part of the Government–Employees of the Land Mortgage Bank arenot Government servants. The Bank itself has its separate entity, beingindependent of the Government.

Article 135–

ManagingCommittee adopted the Government Civil Service Rules for its convenience. Suchadoption does not make the Rules as having statutory force.

Bangladeshvs Md Alauddin 38 DLR (AD) 81.

Article 135–

GovernmentCivil Service Rules adopted by a Co–operative Bank for guidance of theBank–such rules by their adoption by the Co–operative Bank do not extend theprotection given to a government servant.

Bangladeshvs Md Alauddin 38 DLR (AD) 81.

Article 135–

Benefitsenjoyed by Government servants made available to the Bank's employees– They donot thereby become Government servants.

Bangladeshvs Md Alauddin 38 DLR (AD) 81.

Article 135–

An order forcompulsory retirement by way of penalty amounts to removal from service forwhich protection under Article 135 is available.

Governmentof the People's Republic of Bangladesh vs Abdul Motaleb Dewan 45 DLR (AD) 108.

Article 135–

Provisionsof this Article cannot be invoked by the employee's corporations as they standoutside the class of employees referred to therein as "persons in theservice of the Republic"~ These employees are not governed by the law ofmaster and servant either– They will be governed by the rules & regulationsor agreement of their employment in the absence of which their terminationshall be governed by the principle of natural justice.

Theprovision for termination of employees of a Statutory Corporation by simplygiving him three months' notice or three months' pay is a harsh rule capable ofbeing used indiscriminately and that such rule should be re–examined by theauthorities concerned, particularly the Corporation and the Government so as toamend the Rules providing for giving at least gratuity to a terminated employeeaccording to the length of his service. In the instant case, as we have pointedout, .regulation 12, like its parent law, being a protected legislation theprovision for termination by notice is not void though it may be inconsistentwith any fundamental right.

BangladeshBank vs Mohammad Abdul Mannan 46 DLR (AD) 1.

Article 135–

A postalclerk asked to act as an Inspector on purely temporary basis was reverted tohis substantive post after about five years' service–Whether this reversionamounts to reduction in rank– The uninterrupted service rendered by the.respondent–employee for about five years even if considered as"non–temporary or quasi–permanent" cannot be termed reduction in rankto attract constitutional protection. The relevant order indicates that it wasnever meant to be an order of promotion. In the facts of the case therespondent was not entitled to any show cause notice nor was there anyviolation of the principle of natural justice. His contention that he hasacquired a vested right in the post of Inspector must fail.

Bangladeshvs Md Fazlul Huq 43 DLR (AD) 144.

Article 135–

Servicematter– Applicability of second show notice– A person holding any civil post inthe service of the Republic is entitled to a second show cause notice in theevent of dismissal, removal or reduction in rank. This is a constitutionalprotection applicable to a person holding a civil post, not extendable toemployees of a statutory Corporation. This protection can be extended to themonly by statutory rules.

Jamuna OilCompany Ltd. vs SK Dey & another 44 DLR 104.

Article 135–

A personholding a civil post is entitled to a second show cause notice in the event ofhis dismissal, removal or reduction in rank. This is a constitutionalprotection available to such a person.

DG, Prisons& others vs Md Nasim Uddin 53 DLR (AD) 30.

Article 135–

Article 135of the Constitution speaks of Constitutional protection of all persons holdingcivil posts in the service of the Republic. The members of judicial service andmagistrates exercising judicial functions are in the service of the Republicholding civil posts and as such they cannot. be deprived of this constitutionalprotection. Article 135 of the Constitution deals with dismissal, removal orreduction in rank of a person who holds a civil post. The Members of judicialservice and magistrates exercising judicial functions are no doubt holdingcivil posts and public offices as they get emolument and render service to theRepublic.

Secretary,Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82.

Articles 135 & 152–

BangladeshBank (Staff) Regulations– Bangladesh Bank Staff Regulations are protectedlegislation like its parent law, the Bangladesh Bank Order. Theconstitutionality of these Regulations stand beyond any question and cannot bedeclared void being inconsistent with the equality clause of the Constitution.

BangladeshBank vs Mohammad Abdul Mannan 46 DLR (AD) 1.

Article 136–

Per LatifurRahman J. : Article 136 of Part IX speaks of re–organization of service of theRepublic by creation, amalgamation or unification of services and such law mayvary or revoke any condition of service of a person employed in the service ofthe Republic. This concept of reorganisation of service is available to allother civil posts including executive service of Republic other than members ofthe judicial service and magistrates exercising judicial functions as they havebeen treated separately under Articles 115, 116 and H6A of the Constitution.Article 136 refers to all general services of civil posts. 'Judicial service'has been separately treated in the relevant constitutional provisions and assuch conditions of service is to be separately framed under Article 133 and itcannot be tagged as Bangladesh Civil Service (Judicial) under paragraph 2(x) ofAct XXXII of 1975.

Secretary,Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82.

Article 140(1)&(2)–

ThePresident is empowered, by making Regulations, to exclude consultation with thePublic Service Commission in case of promotion to any post in the service ofthe Republic.

ShofiuddinAhmed vs Banglaeesh 47 DLR 81.

Article 140(2)–

The plainmeaning of the words "subject to the provision of any law made by theParliament" appearing in this Article is that any Regulation made by thePresident shall be subject to law enacted by the Parliament whether theenactment has taken place earlier than the Regulation or later.

ShafiuddinAhmed vs Bangladesh 47 DLR 81.

Article 140(2)–

The words"the President shall consult a commission" is not mandatory. When alaw or regulation is framed requiring consultation but no consultation is made,the Court may interfere in the public interest.

Bangladeshvs Shofiuddin Ahmed and 2 others 50 DLR (AD) 27.

Article 141A(2)(b)–

Sending oftroops to Haiti by. no stretch of imagination threatens the security oreconomic life of Bangladesh or of any part thereof.

M SaleemUllah, vs Bangladesh and another 47 DLR 218.

Article 142–

AConstitution is not a mere Act which declares what law is to be– The power toamend the Constitution is within the Constitution itself– The term 'amendment'implies an addition or change within the lines of the original instruments aswill effect an improvement or better carry out the purpose of the Constitution.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 136 Para l0(2)(b) 4th Sch–

The veryconcept of weighing two different classes of persons in the service of theRepublic in the same scale and to fix for them corresponding grade and scale ofpay is a twisting of the Constitutional scheme and is an anathema to theconcept of judicial independence. Secretary, Ministry of Finance Dhaka vs MdMasdar Hossain and others 52 DLR (AD) 82.

Article 142–Constitution is the rule of recognition. An amendment of the Constitution isnot a grundnorm as it has to be according to the methods provided in theConstitution– Total abrogation of the Constitution is not comprehended by theConstitution.

AnwarHussain Chowdury vs Bangladesh 41 DLR (AD) 165.

Article 142–

Interpretationof Constitution – Constitution and its amendment–Amendment shall have to passsome test before it becomes a part of the constitution. Manner of applyingtest– Strict compliance with mandatory procedural requirements– Practicing nodeception or fraud upon statutes and not so repugnant to the existing provisionof the Constitution that its co– existence therewith will render theConstitution unworkable – Doctrine of bar to change of basic structure, ifaccepted, what effect it will have on the basic structure of the constitution.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 142–

Interpretationof Statute Amendment– meaning of the expression – of a statute may havevarious meanings depending upon its context–Whether an amendment is a repeal–Difference between 'amendment' and 'repeal".

Anamendment, if it is made strictly following the prescribed procedure and doesnot alter any basic structure or essential feature of the Constitution, becomesa part of the Constitution whereupon it derives the same sanctity as theConstitution itself. If an amendment of a constitutional provision is the samething as a law it is the Constitution whose position will fall down to thelevel of ordinary legislation. Validity of a law is tested by the touchstone ofthe Constitution; but there is no such stone to test the validity of theConstitution. Its validity is inherent and as such it is unchangeable.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 142–

Impliedlimitation on the amending power inherent in the word "amendment" inArticle 142–Amendment of the Constitution is not its elimination or abrogationand is subject to the retention of the basic structures–Court has power to undoan amendment if it transgresses its limit and alters a basic structure of theConstitution.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 142–

Long titleof the amending Bill. The purpose for the long title is to give a notice to theMembers of the Parliament and there is nothing on record to show that anyMember of the Parliament felt aggrieved or misled for the long title not beingreally a long one. Therefore, I reject the appellants' objection as to thenon–compliance of procedural requirement in passing the impugned amendment.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 142–

Pastamendments– Not challenged before Court– Whether they have become part of theConstitution by general acquiescence–But the fact that basic structures of theConstitution were changed in the past cannot be accepted as a ground to answerthe challenge to future amendment of this nature.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 142–

Amendment–Whether the provisions in Part VI for the Supreme Court can be amended–If thepowers and functions of the Supreme Court devised as the kingpin for securingthe rule of law are seriously impaired by the amendment, the validity of suchan amendment shall be examined on the touchstone of the Preamble.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 142–

Amendment–Constitutionalityof the amendment of the Constitution–Initial presumption of validity in favourof the amendment–Court's duty before striking down an amendment if theamendment can be reconciled with the provisions of the Constitution.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 142–

TheConstitution of Bangladesh is a controlled one because of its specialprocedure and special majority to pass the amendment–Further limitation hasbeen imposed by amending Article 142.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 142–

The doctrineof basic structure is a new one and appears to be an extension of the principleof judicial review.

Amendment–Effectof–Preamble–Basic structure– The Court cannot be precluded from considering thedoctrine of basic structure simply because the principle was not invoked in thepast in the Court.

Ininterpreting 'amendment' in Article 142, guidance has been sought from thePreamble of the Constitution. But unlike in other cases, there is no disputehere in this case that the Preamble is a part of the Constitution.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 142–

The validityof the impugned amendment may be examined on the touchstone of the Preamblewith or without resorting to the doctrine of basic feature.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 142–

Clause (1)of Article 142 of the Constitution empowers the Parliament to amend anyprovision of the Constitution by way of addition, alteration, substitution orrepeal, by an Act thereof. The provisions of the Fourth Schedule beingprovisions of the Constitution itself could likewise be amended as any otherarticle thereof.

M SaleemUllah vs Md Abdul Quddus Chowdhury & another 46 DLR 691.

Article 142–

If in theConstitution, excepting Article 142, it is provided that a particular lawshould be amended or repealed by two–third majority of the members of theParliament, then and there the question of two–third majority will arise toamend or repeal such a law.

Shahriar RashidKhan vs. Bangladesh, represented by the Secretary, Ministry of Law andParliamentary Affairs and others 49 DLR 133.

Article 142 and rule 84–

In Article142 there is no embargo as to the inclusion of more than one object– Theprivate member's amendment is in compliance with Rule 84(1) of the Rules ofProcedure of Parliament.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 142(1)–

Bill– Longtitle– Clause(1) to the proviso in Article 142 does not mandatorily requirethat the subject or the object of the law is to be expressed in the long titleof the bill.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article l42 (1A) –

Not a caseof "Vague doctrine of repugnancy"–Limitation on legislativecompetence–Preamble and Article 8 cannot be amended without referendum.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 142 (1A)–

Constitutionof Bangladesh–Preamble– Amendability of the Preamble–Its rigidity–It can onlybe amended by the people at referendum.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 143–

The Statebeing the owner of natural gas in its sovereign capacity by dint of aConstitutional provision under Article 143 of the Constitution–Respondent No.l's contract with the petitioner for supply of this wealth has been made actingin a 'trading capacity' and discharging an ordinary trading function of theGovernment.

ConforceLimited vs Titas Gas Transmission 42 DLR 33.

Article 147–

Salary ofSupreme Court Judges being exempted from Taxation it could not be included forthe purpose of Taxation while computing their total Income. The position couldnot be affected by the notification issued in exercise of powers under theincome Tax Act, the Act cannot control the provision of the President's Orderthat has provided for the exemption and achieved the status ofsub–constitutional Legislation.

Commissionerof Taxes, Dhaka (West) Zone vs Shahabuddin Ahmed 42 DLR (AD) 162.

Articles 147 & 150–

In view ofArticle 150 of the Constitution, notwithstanding any other provisions of theConstitution to the contrary, the provisions laid down in the Fourth Scheduleshall have effect.

M SaleemUllah vs Md Abdul Quddus Chowdhury & another 46 DLR 691.

Articles 148 & 65–

Member ofthe Parliament–Seats for Women–A person does not become a member of theParliament until he enters upon the office by making and subscribing an oath inaccordance with the Third Schedule of the Constitution. Only those personselected to the Parliament under Article 65(2) who have made the oath becomeelectors in. respect of the thirty seats reserved for women under Article65(3).

Fazle Rabbivs Election Commissioner 44 DLR 14.

Article 152–

By asubordinate legislation the jurisdiction of the Supreme Court exercising originaljurisdiction, either under the Constitution or any other law, can never becurtailed or restricted.

BRTC vsAshraf Jute Mills Ltd 45 DLR 282.

Article 152–

Pension isnot a bounty of/or ex–gratia payment by the State as used to be considered once.Payment of pension is an obligation on the part of the State.

BangladeshRetired Government Employees Welfare Association & others vs Bangladesh andanr 51 DLR (AD) 121.

Articles 152 & 102(1)(2)(5)–

BangladeshRetired Government Servants Welfare Association is an association registeredunder the Voluntary Social Welfare Agencies (Registration and Control)Ordinance, 1961 (Ordinance No. XLVI of 1961). It, therefore, appears that itsactivities are authorised by the above Ordinance, and as such, this associationcan be deemed to be a body within the meaning of the definition of"statutory public authority" as defined in Article 152 of theConstitution. So, by operation of Clause (5) of Article 102 of the Constitutionthis association is a "person" within the meaning of Clause (1) andClause (2) of Article 102 of the Constitution.

BangladeshRetired Government Employees Welfare Association vs Bangladesh 46 DLR 426.

Chapter I, Part VI & Article 152–

There is nocommand in the Constitution that the Tribunal or the Appellate Tribunal issubstitute or co–equal to the High Court Division. It is left to thelegislature, after establishing the Tribunals, to make necessary provisions inthis regard for the carrying out of the functions of the tribunals.

MujibarRahman vs Bangladesh 44 DLR (AD) 111.

Article 152(1 )–

"Court"in Article 152– What it means–The definition of the word 'court' as has beencontained in Article 152 of the Constitution which provides as follows– “In theConstitution except where the subject or context otherwiserequires–"Court" means any court of law including SupremeCourt".

Dr MdAbdullahel Based Shah vs Secretary 38 DLR 409.

Article 152(1)–

Administrativeunit – Whether the Upazila under the Local Government (Upazila AdministrationRe–organisation) Order, 1982 is an administrative unit? The designation asadministrative unit is a constitutional requirement – it cannot be assumed fromthe nature and function of a body corporate.

Ahsanullahvs Bangladesh 44 DLR 179.

Article 152(1 )–

An exerciseof power of an Election Tribunal by an Additional District Judge or aJudge–in–charge of that Court or of the District Judge is not an usurpation ofjurisdiction.

Al–HajAkhtaruzzaman Chowdhury (Babu) vs Mohammad Kabir and others 47 DLR 149.

Article 152(1)–

Theexpression law, includes also a notification and any act. The notification,until repealed will have the force of law. A law does not become inoperative bymere non–user, though the fact of non–user may be extremely important when thequestion is whether there has been a repeal.

ShafiqueAhmed vs Registrar of Trade Marks 47 DLR 309.

Article 152(1)–

Thedefinition of "the service of the Republic" in Article 152(1) isbroad and includes defence and judicial services, but that does not mean thatthe judicial service or the defence service is a part of the civil oradministrative service. Services of different categories and status areincluded in the service of the Republic. Members of the judicial service wieldthe judicial powers of the Republic. They cannot be placed on par with thecivil administrative executive services in any manner, Their nomenclature ofservice must follow the language employed by the Constitution.

Secretary,Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82.

Articles 152(2) & 102(2)(a)–

Manjurul Huqvs Bangladesh 44 DLR 239.

Article 153–

TheConstitution of Bangladesh has not prohibited the use of English language buthas approved of its use in some respect.

Hashmatullahvs Azmiri Bibi 44 DLR 332.

Paras 3A & 18 Sch. 4–

It cannot besaid that the paragraphs 3A and 18 are ultra vires the Constitution inasmuch asthey were inserted by way of amendments of the Constitution and now they arepart and parcel of the Constitution.

ShahriarRashid Khan vs Bangladesh, represented by the Secretary, Ministry of Law andParliamentary Affairs and others 49 DLR 133.

Paras 3A & 18, 4th Sch–

Neither the4th Schedule nor any other provision of the Constitution provides that theIndemnity Ordinance should be treated as a part of the Constitution.

ShahriarRashid Khan vs Bangladesh, represented by the Secretary, Ministry of Law andParliamentary Affairs and others 49 DLR 133.

Para 3A & 18 of the 4th Sch–

Since theIndemnity Ordinance, 1975 was void being ultra vires the Constitution, itcannot be considered as one of the 'other laws' as referred to in paragraphs 3Aand 18 of the 4th Schedule of the Constitution. A void law though not declaredvoid by any Court so long was legally repealed by the Parliament and, as such,there was no illegality or unconstitutionality in passing the Indemnity(Repeal) Act, 1996.

Shahriar RashidKhan vs Bangladesh, represented by the Secretary, Ministry of Law andParliamentary Affairs and others 49 DLR 133.

Paras 3A & 18 4th Sch. Article 102–

ShahriarRashid Khan vs. Bangladesh, represented by the Secretary, Ministry of Law andParliamentary Affairs and others 49 DLR 133.

Para 3A & 18 of 4th Sch. & Article 142 –

Since thereis no provision in the 4th Schedule or anywhere else in the Constitution thatthe laws continued and saved under para 3A & 18 would require two–thirdmajority for amendment, the Indemnity Ordinance No. 50 of 1975 can be amendedor altered or repealed by simple majority members of the Parliament andtwo–third majority was not at all required for the same.

ShahriarRashid Khan vs Bangladesh, represented by the Secretary, Ministry of Law andParliamentary Affairs and others 49 DLR 133.

Para 19(2) 4th Schedule–

Power ofreview under the Martial Law Regulation– Extent and limit of the power–Any attemptto measure the extent or limit of power of this review with reference to powersexercisable under the Code of Criminal Procedure will be misleading. This willhave to be determined by examining the terms of the Regulation. Upon a plainreading of the Regulation it cannot be doubted that the reviewing authority,among others, has the power to "vary" a judgment, even if it is ofacquittal. The word "vary" in Regulation 3(4) includes the power toconvert a judgment of acquittal into one of conviction.

HelaluddinAhmed vs Bangladesh 45 DLR (AD) 1.

Para 19 4th Schedule–

Constitutionalprotection, plea of–The contention that the impugned order of termination ofthe employee was protected just because the president of the employer Trusthappened to be the Chief Martial Law Administrator as well cannot be heldcorrect when nothing was done under Martial Law of any Martial Law regulationin the matter.

FreedomFighter's Welfare Trust vs Momtazul Hossain 44 DLR (AD) 274.

Para 19(2) 4th Schedule–

Principle ofnatural justice–When the principle cannot be invoked– The review contemplatedin Reg. 3 is a part of the original proceeding. There is no case that theappellants were not represented in the trial or prevented from appearance. Insuch circumstance it is difficult to accept that they ought to have been heardalso at the time of reviewing the proceedings. Having regard to the languageused in Para 19(2) of the Fourth Schedule, it will not be possible tosuccessfully invoke any violation of the principle of natural justice.

HelaluddinAhmed vs Bangladesh 45 DLR (AD) 2.

Para 19(2) 4th Sch & Article 102–

Jurisdictionof this Division to examine the validity or otherwise of an order passed underMartial Law Order No.9of1982 has been ousted in view of paragraph No.19(2) ofthe Fourth Schedule to the Constitution as enacted by the Constitution (SeventhAmendment) Act, 1986.

LutforRahman vs Divisional Mechanical Engineer and others 51 DLR 133.

Para 10(2)(b) 4th Sch & Article 136–

The veryconcept of weighing two different classes· of persons in the service of theRepublic in the same scale and to fix for them corresponding grade and scale ofpay is a twisting of the Constitutional scheme and is an anathema to theconcept of judicial independence.

Secretary,Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82.

Constitution(Seventh Amendment) Act [I of 1986]

Section 3–

The order ofcompulsory retirement passed by the then Chief Martial Law Administrator is notliable to be challenged before any Court or Tribunal as the same was passedwhen Martial Law was in force.

Abdur RashidSarker vs Bangladesh 48 DLR (AD) 99.

Constitution of Bangladesh, 1972 [Article 94 – Articles 101]

Constitutionof Bangladesh, 1972

Article 94–

High CourtDivision JudgeFunction of–decisions of High Court Division Judges become"law" of the land binding upon all whether they are parties to thedecision or notDifficulty to constitute specialised Benches is one of thereasons for fall of disposal figures–Further increase in the number of judgeswill hardly make any difference.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 94–

High CourtDivision is one of the Divisions of the Supreme Court ofBangladesh underArticle 94.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 94–

Independenceof judiciary vital for democracy, maintenance of rule of law and socialjustice.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 94–

This clausedoes not lay down any disqualification of a Judge as regards holding of anyoffice other than that of a Judge.

M. SaleemUllah vs Md Abdul Quddus Chowdhury & another 46 DLR 691.

Articles 94, 98, 106, 109, 111 and 112–

In theConstitution the High Court Division is vested with plenary power withoutinjection of any territorial conception–High Court Division is an integral partof the Supreme Court of Bangladesh.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Part VI dealing with Articles 94 to 107, 116–

Article100(5)–The sub–article (5) has disrupted the structural balance that wascarefully erected in Part VI of the Constitution.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Articles 94, 100, 101. 102, 103, 104, 105, 106, 107(3), 108, 109and 110–

Constitutionaldevelopments of the High Court Division after the promulgation of the Constitutionon 16–12–1972 traced and discussed–The provisions of the Constitution underPart VI in relation to the amended Articles as to whether the integrity of theSupreme Court was destroyed, were discussed and held that no other Article ofChapter 1 of Part VI having been amended (except 107(3) which was consequentialit must be presumed that the integrity of the Supreme Court, High Court,Division, with its unlimited territorial jurisdiction was not impaired and theHigh Court Division remained one as before–The impugned amendment to beconstrued in harmony with all other provisions of Chapter I.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Articles 94, 101, 102 and 111–

High CourtDivision as an integral part of Supreme Court has lost its original characteras well .as most of its territorial jurisdiction by the impugned amendment.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Articles 94 and 152–

High CourtDivision and High Court–Popular notion–Distinction between–Expression "Division"–Legalsignificance of–Two Divisions of the Supreme Court–Word "comprising"occurring in Article

94–Dictionary meaning of the word Interpretation of the High Court Divisionoccurring in Article 152– Meaning of the word "judge"–Oneness of theCourt settled by constitutional provision.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Articles 94(4) & 116A–

Theindependence of the judiciary, as affirmed and declared by Articles 94(4) andl16A, is one of the basic pillars of the Constitution and cannot be demolished,whittled down, curtailed or diminished in any manner whatsoever, except underthe existing provisions of the Constitution.

Secretary,Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82.

Articles 95, 98 & 116–

Constitutionalconsultation cannot be equated with conventional consultation–Constitutionalconsultation is carried out pursuant to the provisions of Article 116 of theConstitution and that authority is vested not in the Chief Justice but in the SupremeCourt –the consultation within the meaning of Article 116 must be an effectiveconsultation but that concept has no manner of application in case ofconventional consultation.

SN Goswami,Advocate & anr vs Government of the People's Republic of Bangladesh &ors 55 DLR 332.

Article 95(2)–

Once therequirements as laid down in Article 95(2) are fulfilled and the President actson the advice of the Prime Minister, this Court cannot cause an inquiry as tothe reason of appointing a particular person as a Judge. It is the absoluteprerogative of the Executive under the existing provisions of the Constitution.

SN Goswami,Advocate & anr vs Govt of the People's Republic of Bangladesh & ors 55DLR 332.

Articles 96 & 99–

Article 99though provided for appointment of a retired judge in any "judicial orquasi–judicial office" has not provided for any procedure for suchappointment. The concept of judicial independence suggests that his appointmentalong with terms and conditions of service be governed under Article 96 as inthe case of a sitting judge.

But in theabsence of any specific provision to this effect we find it difficult to holdthat the petitioner's service as Chairman of the Court of Settlement isgoverned by Article 96. But when Article 99 has provided for appointment of aretired Judge in a judicial or quasi–judicial office, some statutory provisionshould also be made for giving him minimum security of his service, whateverits period may be. The Public Servants Retirement Act under which thepetitioner's contract was made does not apply to a retired Judge of the SupremeCourt. The appointment, removal and other terms and conditions of service of aretired Judge in a public office should not be governed either by "master–and–servantlaw" or by any unequal contract.

Abdul BariSarkar vs Bangladesh 46 DLR (AD) 37.

Article 100 (old)–

The impugnedamendment will go off the Constitution and the old Article 100 will standrevived with its provision for holding of sessions–Sessions means holding ofCourt in full. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Holding'Sessions' occurring in Article 100 (old)––Without framing any rule by theCourt these six places figured in the Chief Justice's proposal for holding'Sessions'– Chief Justice's constitution of any Bench of Division vide Article107(3) is subject to Rules to be framed under Article 107.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Articles l00 (old) and Article 107–

Holding"Sessions" must be regulated by law–Article 100 does not mention"consultations"– How to hold "Sessions"– To hold sessionsor not is the end result of judicial decision to be taken in the full Court.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 100–

AmendedArticle 100– Nature of the Supreme Court– Contention arose because the impugnedlegislation has set up Permanent Benches.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 100–

It is onlyin the matter of seeking approval that Chief Justice brings the matter to thenotice of the President because logistics and administrative matters areinvolved.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 100–

Concept ofmatters arising out of areas as mentioned in rules framed by the Chief Justiceis akin to the concept of the cause of action in the Civil Procedure Code.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article l00(amended)–

By theimpugned Article the High Court Division has been denied of its power andjurisdiction under Article 102 of the Constitution over a large part of thecountry.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 100–

SupremeCourt's constitutional responsibility– Restoration of old Article 100 in itsoriginal position "along with the Sessions of the High CourtDivision" by striking down the amended Article 100– Indemnity of thejudgments, orders, decrees passed under amended Article 100 as past and closedtransactions made by express order of the Court.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 100–

Territorialunits may claim status of federating units––Court's apprehension about theperils of regionalism fraught with the possibility of dismantling the fabric ofthe Republic. The amendment purports to create territorial Units whicheventually may claim the status of federating Units thereby destroying the veryfabric of Unitary Republic. In other words, by sowing the seeds of regionalismthe next step can be dismantling the fabric of the republic.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 100–

Thedecentralisation of the High Court Division which started under the Martial LawRegime has now been given constitutional recognition by the Eighth AmendmentAct.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Articles 100, 107, 108, 109, 110, 111–

Territorialdivisions for the jurisdiction of Benches and High Court Division at thepermanent seat–No common authority over them –Writs issued by them will belimited in operation to their respective areas–Admiralty jurisdiction of theHigh Court Division cannot be assigned to any of the areas–Territorial watersbelong to the Republic and not to any district High Court Division's power totransfer under Article 110 has been negative. Superintendence and control underArticle 109 has also been affected– Binding effect of judgment under Article111 has also been split up– Repugnancy thus resulted is irreconcilable.

By amendingthe Constitution the Republic can be replaced by Monarchy, Democracy byOligarchy or the judiciary cannot be abolished, although there is no expressbar to the amending power given in the Constitution.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Articles 100,107(1) and 107(3)–

Rule makingpower of the Supreme Court–Holding of 'Sessions'– Chief Justice to takedecision to hold Sessions in accordance with rules framed by the Court– ThePresident as the highest executive can advise the Chief Justice as to theviability of die proposal.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Articles 100 and 142(1A)–

Absence oflong title– Since the amended Article 100 has been found bad on merit forhaving created seven Courts of exclusive jurisdiction, the absence of longtitle justified the contention that it was deliberately done to confuse themembers of Parliament as to what was being carried through.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 100(3)–

By theAmendment Act original Article 100 had been displaced and a complete newdispensation created by creating Permanent Benches at six designated places(Article 100(3)) then comes sub–article (5).

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 100(5)–

The pre–requisitein Article 100 (5) is consultation, the absence of such consultation isdemonstrative of arbitrariness in setting up of Permanent Benches which isunconstitutional.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 100(5)–

Interpretationof the Constitution– Settled principles to be kept in mind–Permanent Benches towhich President assigned the areas with jurisdiction under Article 100(5)–Theory of separation of power and cherished canon of independence of judiciarymilitated against.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 100(5)–

In Article100(5) it has been done other way about, namely, the President is to assignarea in consultation with Chief Justice. The learned Attorney–General hasplaced before us a copy of the minutes which shows that it was initiated by theLaw Ministry for setting up Permanent Benches in those very six places whichwere selected earlier by the Martial Law period and the Chief Justice only gaveconsent by saying without taking the opinion of the High Court Division itself.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 100(5)–

The HighCourt Division has lost its resonance– The plenary jurisdiction was totallydestroyed.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 100(5)–

PermanentBenches– Criteria for the Benches not given by the Constitution– Constitutionnever contemplated Benches far less the territorial jurisdiction of the HighCourt Division.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 100(5)–

Interpretationof Constitutional provision–Amendment–Effect of–Because of the clause(5) ofArticle 100 the High Court Division has lost its valency as an integral limb ofthe Supreme Court and Chief Justice has got also no power to transfer any casefrom one Permanent Bench to another or to the High Court Division at. itspermanent seat at Dhaka–The term 'area' has been mentioned in Article 100,three times, always meaning a territorial area and the six notifications showthat they are Zilla areas– The term 'area' cannot be extended to mean"jurisdiction'.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Articles 100(5) and 101–

8thAmendment dated 9th June, 1988–President's Notification dated 11th June, 1988giving effect to the 8th Amendment assigning areas of the Permanent Benches–Chief Justice's Notification dated 11th June, 1988 constituting ·Benches on thesame day– Entire Bangladesh was divided and assigned to 7 Benches withjurisdictions, powers and functions given to the 'Permanent Benches' and alsoto the Bench at the permanent seat– Nothing was left for Article 101 whichspeaks of jurisdictions, powers and functions of High Court Division–UnderArticle 100(5) all 'Permanent Benches' share equal power and jurisdiction coextensivewith the 'Residuary Bench' at the permanent seat–Then where is the existence ofHigh Court Division.

AnwarHussain Chowdhury vs Bangladesh 41 DLR(AD) 165.

Articles 100(5) and 101–

AmendmentEffect of– Jurisdictions of the High Court Division granted by Article 101 butthe same jurisdictions, powers and functions are now conferred on the PermanentBenches and the Court sitting at permanent seat of the Supreme Court.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Articles 100(5), 101 and 102–

Interpretationof Constitutional provisions– Upon a true interpretation of amended Article 100sub–article(5), position emerges that the plenary jurisdiction vested in thejudges of the High Court Division under Articles 10 l and 102 has remainedunaffected–The limitation of territory under sub–article(5) of Article 100 ismeant to operate not on the jurisdiction of the Court or its judges but on themanner of its exercise.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Articles 100(5), 101and142–

Interpretationof Constitutional provisions– Two sets of courts– The Permanent Benches at thedesignated places and the Court at the permanent seat with specificallyconferred jurisdictions, powers and functions– Articles 10l has beenstructurally dismantled because of the allocation of the specified exclusivejurisdictions, powers and functions on permanent Benches and for the residuaryarea to the Court at the Permanent Seat.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 100(6)–

Rules framedby the Chief Justice thereunder– Rules framed by the Chief Justice show thatthe Permanent Benches are in fact new Courts therefore pending proceedings hadto be transferred– The Rules are ultra vires on the very face of it.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 100(6)–

The Ruleshave brought in focus the evils of impugned amendment.

AnwarHussain Chry vs Bangladesh 41 DLR (AD) 165.

Article 100(6)–

A litiganthas vested right to continue the proceedings in the pre–existing forum. To sumup:

(1) Theamended Article 100 is ultra vires because it has destroyed the essential limbof the judiciary namely, of the Supreme Court of Bangladesh by setting up rivalcourts to the High Court Division in the name of Permanent Benches conferringfull jurisdictions, powers and functions of the High Court Division;

(2) AmendedArticle 100 is ultra vires and invalid because it is inconsistent with Articles44, 94, l 0 l and l 02 of the Constitution. The amendment has rendered Articles108, 109, 110, 111 and 112 nugatory. It has directly violated Article 114.

(3)Amendment is illegal because there is no provision of transfer of cases fromone Permanent Bench to another Bench which is an essential requisite fordispensation of justice (See AIR 1979 (SC) 478);

(4) Theabsence of such provision of transfer shows that territorial, exclusive courts,independent of each other, have been created dismantling the High CourtDivision which in the Constitution is contemplated as integral part of theSupreme Court;

(5) Transfer of judges by a deeming provisionis violative of Article 147;

(6) It hasnot merely set up a permanent Bench as in Indian jurisdiction because theIndian High Courts have territorial jurisdiction and in setting up Benches fordeciding cases in outlying area the legislative language is "to exercisethe jurisdictions and powers for the time being vested in the High Court inrespect of cases arising in districts".

That is thelanguage of the Letters Patent as well. See Patna High Court Letters Patent Clause35 while conferring jurisdiction for Orissa in order to exercise power inrespect of cases arising in that Division.

(7) But inthis amendment unfortunately the legislative will have been carefully draftedto camouflage the real purpose namely, of setting up of two rival classes ofHigh Court Division in the name of permanent Bench and Bench in the residuaryarea while using the expression "jurisdiction", 'powers' and'functions' separately in each group and the Article 101 stands alone with thelanguage of law namely, the High Court Division shall exercise powers,functions and jurisdictions when that High Court Division itself ceases toexist in name;

(8) Sessionsconnotes temporariness. The Dictionary meaning: "a period of beingassembled." In the Constitution Article 100 says as the Chief Justice maywith the approval of the President, from time to time appoint. Any otherdevices contrary to the spirit of the Constitution will tantamount to fraud onthe Constitution on the principle what cannot be done directly shall not bedone indirectly.

(9) Noargument was advanced directly though but attempt was made whether by running ablue pencil the court would sever the bad part from the good part of theenactment. The answer is in the negative; because what is the purpose of this amendment namely, to set up permanentBenches with full jurisdictions, powers and functions of the High CourtDivision. The other provisions in the amended Article are so interwoven with thescheme that they cannot be separated. Therefore, the full article is liable tobe declared ultra vires.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Articles 101, 103 and 105–

High CourtDivision's jurisdictions, powers and functions, both original and appellate,occurring in Article 101– In Bangladesh the Supreme Court is constituted by theConstitution itself detailing the jurisdictions, powers and functions of eachDivision.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Constitution of Bangladesh, 1972 [Articles 26 – Article 47]

Constitutionof Bangladesh, 1972

Articles 26 and 27–

Whether thedisqualification clause in section 7(2)(g) of UP Ordinance, 1983 offends theequality clause in Article 27 of the Constitution of Bangladesh.

As there hasbeen no corresponding disqualification for a person seeking election to theParliament, though he has alike defaulted in repayment of the same kind ofloan, it is contended, the disqualification provision offends Article 27 of theConstitution of Bangladesh which provides that "all citizens are equalbefore law and are entitled to equal protection of law," and as such,section 7(2)(g) being discriminatory in nature should be struck down in termsof Article 26 of the Constitution.

Sheikh AbdurSabur vs Returning Officer 41 DLR (AD) 30.

Articles 26(1), 27, 31 and 32–

The dictumof restitution of conjugal rights is a violation of the concept of liberty,freedom, equality and social justice enshrined in our Constitution.Consequently, the law of restitution of 'conjugal rights' is repugnant to theConstitution and as such void. No suit for restitution of conjugal rights ismaintainable in law in any Court in Bangladesh.

KhodejaBegum & others vs Md Sadeq Sarkar 50 DLR 181.

Article 27–

Thefunctions of the members of Parliament and the members of the Union Parishaddiffer widely.

LocalAuthority, although representative bodies chosen by adult franchise, have notthe autonomy of the Parliament. Indeed they are dependent on Parliament fortheir powers. The powers of a local authority derive from status and they areexercised subject to the rule of ultra vires. It is true both the members ofthe Parliament and the members of local councils are elected by the same voter;but their respective functions differ widely.

Sheikh AbdusSabur vs Returning Officer 41 DLR (AD) 30.

Article 27–

Understandableand intelligible classification of persons does not offend the equality clauseof the Constitution. The material points of difference between a member and thechairman present understandable criterion and as such their classificationcannot be termed arbitrary and fanciful. If the impugned provision in itsapplication ultimately causes any evil or mischievous result, the legislatureshall face the trial before their electorates. It is a political question. TheHigh Court Division shall only look for whether the legislature has legislatedwithin their constitutional limit.

Abdul MannanKhan vs Bangladesh 42 DLR 316.

Article 27–

Equalitybefore law–The term "equality before law" should not be interpretedin its absolute sense to hold that all persons are equal in all respectsdisregarding different conditions and circumstances in which they are placed orspecial quality and characteristics which some of them may possess but lackingin others.

In theinstant cases the impugned classification as I find was necessary in view ofthe circumstances under which ad–hoc appointments were made and allowed tocontinue for indefinite period and this classification got reasonable basishaving nexus to the object to be achieved, that is, to do justice to these ad–hocappointees by including in their service the period they served on ad–hocbasis. This benefit has been uniformly distributed to all the officers– Thosewho had been regularised earlier through the PSC and those who were regularisedunder the Ad–hoc Appointment Regularisation Rules, 1983.

Bangladeshvs Md Azizur Rahman 46 DLR (AD) 19.

Article 27–

Equalitybefore law–Equality as under Article 27 means equality between citizens orpersons of the same footing. A reasonable classification is never ultra viresof the equality clause.

Afsar AliChowdhury vs Bangladesh 43 DLR 593.

Article 27–

Classificationof government officials to accord or not to accord the benefit of purchase ofabandoned property is not repugnant to the equality doctrine. It is not for theCourt in such cases to demand from the Government a scientific accuracy on suchclassification.

Ajia Khatunvs Secretary, Ministry of Works 44 DLR 225.

Article 27–

Equalitybefore law–The order cancelling the petitioner's licence is bad in law as hewas not given a fair opportunity to controvert the allegation brought againsthim. An arbitrary and capricious order is liable to be set aside as beingviolative of Article 27.

Abul Hussainvs Bangladesh 44 DLR 521.

Article 27–

Equalityclause does not necessarily mean that every law or governmental action mustalways have similar application to all persons irrespective of differences ofcircumstances and the principle does not take away from the legislature or thegovernment the power of classifying persons for the purpose of theapplicability of a law or governmental action, provided the classificationmeets the twin tests of rationality and nexus with the object of legislation orgovernment action.

RetiredGovt. Employees vs Bangladesh 46 DLR 427.

Article 27–

Classificationof pensioners on the basis of date of their retirement has hardly any nexuswith the object sought to be achieved by the two notifications, i.e. makingprovision for sustenance of the government employees in the face of rising costof living, and as such, they are repugnant to the very concept of equality andequal protection of law.

RetiredGovt. Employees vs Bangladesh 46 DLR 427.

Article 27–

Barring athrice–elected member of the managing committee of a co–operative associationto stand for election again till the lapse of 2 years since his last termexpired as provided in section 19(2) of the Co–operative Societies Ordinance isnot an unreasonable restriction.

Abdus Sattarvs Bangladesh 45 DLR (AD) 65.

Article 27–

The twotypes of power given to the Registrar under section I 0 of the IndustrialRelations Ordinance, 1969 and section 5 of the Amendment Act, 1990 aredissimilar in their operation and field of application. There can be no parityof application of the two sections. Tbe amendment cannot be said to haveviolated Article 27 of the Constitution.

Secretary ofAircraft Engineers of Bangladesh & another vs Registrar of Trade Unions andothers 45 DLR (AD) 122.

Article 27–

Thepensioners of various categories being not on same and equal footing theirclassification is not illegal and violative of Article 27 of the Constitution.For the purpose of calculation of pension the classification of pensioners onthe basis of the last pay drawn is a real and rational classification.

BangladeshRetired Government Employees Welfare Association & others vs Bangladesh andanr 51 DLR (AD) 121.

Article 27–

The embargoon banks, insurance companies and other financial institutions to nominate itsdirectors on the Board of a financial institution is based on a reasonableclassification.

City BankLimited and others vs Bangladesh Bank and others 51 DLR (AD) 262.

Article 27–

Law requiresthat subsequent change of terms and conditions of tender must be relayed toeach and every participant so that all of them can avail of the equalopportunity while participating in the tender.

EkusheyTelevision Ltd and others vs Dr Chowdhury Mahmmod Hasan and others 54 DLR (AD)130.

Article 27–

WritJurisdiction–Transparency–On review of the process adopted in giving licenceto Ekushey Television, the conclusion is that there exists more than oneevaluation report bearing the same number and date and one of them is changedto the advantage of ETV. The process is definitely not transparent.

EkusheyTelevision Ltd and others vs Dr Chowdhury Mahmmod Hasan and others 54 DLR (AD)130.

Article 27–

All citizensare equal before law, but they may be subjected to different provisions of lawat different times, depending upon the circumstances in which they find themselves.

SA CoconutMills Ltd vs Government of the People's Republic of Bangladesh and others 54DLR 1.

Article 27–

In thebackground of the existing practice of absorbing the employees of thepetitioners category on satisfactory completion of the initial period ofemployment under a contract it can be said that there was reasonable ground forthe writ petitioners to expect for being absorbed permanently in the service ofthe Corporation.

BangladeshBiman Corporation, represented by Managing Director vs Rabia Bashri Irene andothers 55 DLR (AD) 132.

Article 27–

Since someemployees of the Corporation inter se standing in the similar situation havenot been treated in the similar manner or, in other words, have been treateddifferently from the others the contention of the writ petitioners that theyhave been discriminated against has rightly been found genuine by the HighCourt Division.

Bangladesh'Biman Corporation, represented by Managing Director vs Rabia Bashri Irene andothers 55 DLR (AD) 132

Articles 27 and 29–

When thestatus, remuneration and nature of work of Extramuharrars and TC Muharrars aremanifestly different, the basis of their classification for recruitment is realand not illusory.

Nurul Islamvs Secretary, Ministry of Law 46 DLR (AD) 188.

Articles 27 & 29–

For obviousreasons the equality before law and equality of opportunity are both governedby the principle that the equality should be qualified by the qualification ofthe citizen.

Theopportunity offered to the citizen must be subject to the qualifications of thecitizen. For example, in the posts of Muharrars all citizens of Bangladeshcannot make a prayer for appointment. Only such citizen as has the requisitequalification may be offered an opportunity for employment in the post ofMuharrars. So we have to consider whether there was discrimination among thecitizens with equal qualification and equal claim.

Nurul Islamvs Bangladesh 46 DLR 46.

Articles 27 & 29–

Classificationof those who failed in the examination for the first time like the petitionerand those who did not appear at all in such examination or failed to appear insuch examination into two categories has a reasonable basis and an intelligibledifferentia. Subsequently passing of one who failed earlier in such examinationthough securing highest position like the petitioner is immaterial as thestigma of failure sticks to him. The classification of the two categories ofofficers is not discriminatory.

A BMohiuddin Ahmed, Executive Engineer vs Bangladesh and others 49 DLR 353.

Article 27 & 29–

Arbitrarinessand the equality clauses as enshrined in both Article 27 and Article 29 of theConstitution are sworn enemies.

Aftab Uddin(Md) vs Bangladesh, represented by Secretary, Ministry of Establishment, Governemntof the People's Repbulic of Bangladesh and others 48 DLR I.

Articles 27 & 29–

The markingsystem at the Interview tests should only be such as to be the determiningfactor only in such cases of candidates as are found equally suitable on thebasis of the objective assessment in their respective annual confidentialreports.

ShafiuddinAhmed vs Bangladesh 47 DLR 81.

Article 27 & 29–

The framersof the Constitution attached immense importance to the service of the Republicand guaranteed equal opportunity under Article 29. The words "in respectof employment" is so wide, that it includes all matters in relation toemployment, both prior and subsequent to initial appointment, subject toreasonable rules framed by the Government.

GaziJashimuddin vs Bangladesh, represented by the Secretary, Ministry of HomeAffairs, Government of Bangladesh, Bangladesh Secretariat, Dhaka & others50 DLR 31.

Articles 27 & 29–

If theexecutive prepares a list of persons for appointment in the service of theRepublic without the backing of any law behind it and actually appoints somepersons from the list, the others left out can come to the High Court Divisionnot for enforcement of any legal right but for enforcement of their fundamentalright.

Secretary,Ministry of Establishment Government of Bangladsh and others vs Md JahangirHossain and 65 others 51 DLR (AD) 148

Articles 27 & 29–

The argumentthat the fundamental right of the petitioners as provided in Articles 27 and 29of the Constitution have been violated cannot be accepted for the simple reasonthat the order of transfer from one place to another is really a matterconnected with the terms and condition of the service of the petitioners.

Jihad Ahmedand others vs Bangladesh Power Development Board and others 52 DLR (AD) 75

Articles 27 and 29–

The normalrule is that the Government· or a statutory authority must not act arbitrarilyfor the sake of transparency and accountability but a departure can be madefrom the normal rule in granting lease if a classification of those. intendingto take lease is made on a reasonable basis 'intelligible differentia' or 'withinthe permissible criteria'.

Akramuzzamanvs Government of Bangladesh, and others 52 DLR 209.

Articles 27, 29, 44 & 117–

When simpleterms and conditions of service of persons in the service of the Republic arematters–in–issue Article 117 of the Constitution applies but whea the questionof enforcement of fundamental rights is involved this Court must assumejurisdiction in view of the mandate in Article 44 of the Constitution.

ShafiuddinAhmed vs Bangladesh 47 DLR 81.

Articles 27, 29 & 102–

Since inthis writ petition the petitioner has challenged the actions of the respondentsand claimed enforcement of his fundamental rights on the allegation that therespondents infringed his fundamental rights by giving the impugned promotionsin violation of certain specific provisions and mandates of the Constitutionand since, the petitioner has not challenged· any action of the three promoteesin any manner whatsoever, the three persons are not necessary parties in thiswrit petition.

Aftab Uddin(Md) vs Bangladesh, represented by Secretary, Ministry of Establishment,Government of the People's Republic of Bangladesh and others 48 DLR 1.

Articles 27, 29, 102 & 117–

The writpetition was not maintainable because the petitioner did not seek to enforceany fundamental right and it was within the competence of the AdministrativeTribunal to entertain the grievance of the petitioner.

JunnurRahman vs Bangladesh Shilpa Rin Sangstha (BSRS) and others 51 DLR (AD) 166.

Articles 27, 29, 102(1 )(2) & 117–

Evenassuming that a person might have concurrent remedy before any other forumincluding an Administrative Tribunal for redress of his grievance, if it is establishedthat enforcement of any fundamental rights conferred on him by Constitution isinvolved, for redress of such grievance such a person can certainly choose thisCourt as his forum in view of clause (I) of Article I 02 of the Constitutiondespite the fact that remedy may also be provided by any other forum.

Aftab Uddin(Md) vs Bangladesh, represented by Secretary, Ministry of Establishment,Government of the People's Republic of Bangladesh and others 48 DLR 1.

Articles 27 & 30–

A detenu isneither a convict nor an under trial prisoner. Under– the Jail Code, a stateprisoner is to receive treatment like civil prisoner. This does notsufficiently cover the status of a detenu. The Government should frame rulesregarding the detenu keeping in mind that he still retains some right underArticles 27 and 30 of the Constitution in spite of his detention.

KalandiarKabir vs Bangladesh and others 54 DLR 258.

Articles 27 & 31–

There is nodiscrimination in classifying the sponsors/directors of private sector banksand financial institutions or members of their families separatelyfrom the restof the people for imposing restrictions on their becoming sponsors/directors ofthe insurance companies the same has been done in public interest to save theeconomy of the country.

NasreenFatema and 20 others vs Bangladesh and others 49 DLR 542.

Articles 27 & 31–

On areference to other provisions of the Act, it is found that all the defaultingborrowers of Krishi Bank are entitled to equal protection of law provided bythe Act by way of appeal, review and revision and as such the learned Judgeswrongly held that section I OA offends Articles 27 and 31 of the Constitution.

BangladeshKrishi Bank vs Meghna Enterprises and another 50 DLR (AD) 194.

Article 27 & 31–

It must bepresumed that the law as made is consistent and valid unless the presumption isrebutted.

Karamat Aliand others vs Government of the People's Republic of Bangladesh & others 50DLR 3 72.

Articles 27 & 31–

When theJudges held that section 10A of the Act offends Articles 27 and 31 of theConstitution they ought to have struck down the section The subordinatelegislation must be knocked down when it comes in conflict with the fundamentalrights as guaranteed under the constitution.

Bangladesh KrishiBank vs Meghna Enterprises and another 52 DLR (AD) 57.

Articles 27 & 31–

Defaultingborrowers themselves form a separate and distinct class and legislature canmake stringent law against them and such law is not violative of thefundamental rights.

Anwar Karimand others vs Bangladesh Bank and others 52 DLR 1.

Article 27, 31 & 40–

Petitionersnot being absorbed as teachers of Government College need not seek reliefbefore the Administrative Tribunal–their invoking of jurisdiction on grounds offundamental rights is appropriate, speedy and efficacious.

Abdur Rahimand 6 others vs Government of Bangladesh 48 DLR 538.

Articles 27 & 133–

MujibnagarEmployees (Conditions of Service) Rules, 1980 were made for the limited purposeof treating the services rendered by such employees at Mujibnagar and treatingthe period for which the Government could not keep them employed as leavewithout pay. It cannot therefore, be said to be violative of the equalityclause of the Constitution.

Admittedly,no other provision was made about the fixation of seniority of Mujibnagaremployees counting the service rendered at Mujibnagar and about otherprovisions made in the impugned Rules before the impugned Rules were made bythe President and so the President was competent to make those Rules. Hence,those Rules were made in proper exercise of power conferred by Article 133 ofthe Constitution. Khondker Mahbubuddin Ahmed drew our attention to the case ofZainal Abedin vs Bangladesh, reported in 34 DLR 77 in which a Special Benchdeclared the Government Servants (Seniority of Freedom Fighters) Rules, 1979ultra vires of Articles 27 and 29 of the Constitution. By those Rules two yearsante–dated seniority was given to the Freedom Fighters. The said Rules are notsimilar to the instant Rules. However, the judgment passed in that case abatedwhen a Civil Appeal by certificate under Article 103(2)(a) of the Constitutionagainst the said judgment was pending before the Appellate Division.

MM SahidurRahman vs Bangladesh 46 DLR 187.

Articles 27, 47(2), 135 & 152–

BangladeshBank (Staff) Regulations–Bangladesh Bank Staff Regulations are protectedlegislation like its parent law, the Bangladesh Bank Order. Theconstitutionality of these Regulations stand beyond any question and cannot bedeclared void being inconsistent with the equality clause of the Constitution.

If there isany inconsistency between the Bangladesh Bank Regulations and these two Acts ofParliament then it is only in respect of the provision for "termination ofservice". This is because services in the Bank like that under all otherstatutory bodies are not protected by Article 135 of the Constitution.Therefore, there is no basis for argument that the Bangladesh Bank (Staff)Regulations (and for that purpose, Service Regulations of all other statutorybodies) are inconsistent with the Public Servants Retirement Act or Service Re–organisationAct. Even if there is any inconsistency, the Rule in question cannot bedeclared void for, a law may be declared void only if it is inconsistent withany provision of the Constitution. Moreover, when these Bank Regulations areimmune from attack on the ground of inconsistency with any constitutionalprovision, they cannot be held to be void because of inconsistency with any otherlaw.

BangladeshBank and other vs Mohammad Abdul Mannan 46 DLR (AD) 1.

Article 29–

Equalopportunity– Reduction of chance of promotion does not amount to deprivation ofthe right to equal opportunity for employment. No grievance could be made of newrules if they are made bonafide to meet exigencies of service.

Bangladeshvs Md Azizur Rahman 46 DLR (AD) 19.

Article 28–

Thereduction of age limit from 57 years to 35 years of the petitioner on thestrength of amended Regulation 11 does not stand on any sanction of any law,rather the same is violative of Article 28 of the Constitution.

DaliaParveen vs Bangladesh Biman Corporation and another 48 DLR 132.

Article 28–

Genderdiscrimination–The SRO published in the Bangladesh Gazette on February 5th 1984which provides that the retirement of Flight Steward (male) 45 years and FlightStewardess (female) 35 years are violative of Articles 28 of the Constitution.

Rabia BashriIrene and another vs Bangladesh Biman Corporation and another 52 DLR 308

Article 28–

The matterof fixing the age of retirement of the Stewards and Stewardesses being gender–basedthe same has rightly been held by the High Court Division discriminatory andthe discrimination so made being violative of Article 28 of the Constitution isnot legal.

BangladeshBiman Corporation, represented by Managing Director vs Rabia Bashri Irene 55DLR (AD) 132

Articles 28 & 29–

Givingbenefit to some and denying the same to others under the same agreement andservice condition is not only illegal but also the same offends therespondents' fundamental rights.

Carew andCompany (Bangladesh) Limited vs Chairman Labour Court and others 50 DLR 396.

Article 28( 4)–

Indirectelection for reserved seats whether destroyed the principle of democracy–Asystem of indirect election cannot be called undemocratic. It is provided inthe Constitution itself. Clause 4 in Article 28 provides that nothing in thatArticle shall prevent the State, which expression includes Parliament, frommaking special provision in favour of women as done by Act No. 38 of 1990.

Dr. AhmedHussain vs Bangladesh 44 DLR (AD) 109.

Article 29–

For obviousreasons the equality before law and equality of opportunity are both governedby the principle that the equality should be qualified by the qualification ofthe citizen.

Nurul Islamvs Bangladesh 46 DLR 46.

Article 29–

There isnothing to show that the members of Civil Services (Administration) are in anyway different from and superior to the members of other services and as suchmembers of all the services should be treated in a similar way.

Abdul Mannan(Md) vs Government and others 55 DLR 237.

Article 31–

Protectionof life means that one's life cannot be endangered by any action which isillegal, but it does not mean protection of an illegal action of any person.

Gias Uddin,son of Rahimuddin vs Dhaka Municipal Corporation, and others 49 DLR 199.

Article 31–

As the sex–workersare now confined in Vagrant Home illegally terming them vagrant, therespondents have to release them forthwith so as to enable them to go on theirown which is their fundamental right guaranteed under the Constitution.

BangladeshSociety for the Enforcement of Human Rights (BSEHR) and others vs Government ofBangladesh and others 53 DLR 1.

Article 31–

The word'life' in Pakistan Constitution is similar to the word 'life' appearing inArticle 21 of the Indian Constitution and in Article 31 of our Constitution.‘Right to life’ in Article 31 means right to sound mind and health.

ProfessorNurul Islam and others vs Government of the People's Republic of Bangladesh& ors 52 DLR 413.

Article 31–

Advertisementof cigarette and cigarette–related products are steps detrimental to life andbody of the people–Article 31 of the Constitution is directly contravened byadvertisements in any form of telecasting and broadcasting of cigarette/bidicommercials on the television and radio, billboards etc.

ProfessorNurul Islam and others vs Government of the People's Republic of Bangladesh 52DLR 413

Article 31–

It is noviolation of Article 31 of the Constitution, when the National Board ofRevenue, under the authority of law, limits the grant of private warehouselicences to Industries, having paid up capital of 10 crore takas or more.

SA CoconutMills Ltd vs Government of the People's Republic of Bangladesh and others 54DLR l.

Article 31–

As theletter impugned in the writ petition did not contain anything detrimental tothe reputation and career of the respondent, there was no violation of theprovision of Article 31 of the Constitution and, as such, the writ petition sofiled was not maintainable.

Secretary,Ministry of Law, Justice and Parliamentary Affairs & ors vs Md Borhan Uddin& ors 56 DLR (AD) 131

Articles 31 & 32–

If right tolife under Article 31 and 32 of the Constitution means right to protection ofhealth and normal longevity of an ordinay human being endangered by the use orpossibility of use of any contaminated foods, etc then it can be said thatfundamental right of right to life of a person has been threatened orendangered.

Dr MohiuddinFarooque vs Bangladesh, represented by the Secretary, Ministry of Law, Justiceand Parliamentary Affairs, Government of the People's Republic of Bangladesh 48DLR 438.

Articles 31 & 32–

Upon theirwholesale eviction from Tanbazar and Nimtali prostitutes have been deprived oftheir livelihood which amounts to deprivation of the right to life making theaction unconstitutional and illegal.

BangladeshSociety for the Enforcement of Human Rights (BSEHR) and others vs Government ofBangladesh and others 53 DLR 1.

Articles 31 & 32–

All personswithin the jurisdiction of Bangladesh are within Bangladesh rule of law. Theforeign investors in ETV are no exception to this principle.

EkushayTelevision Ltd and others vs Dr Chowdhury Mahammod Hasan and others 54 DLR (AD)130.

Articles 31 & 32–

'This Courtis oath–bound to protect the Constitution including the fundamental rights ofthe citizens and is obliged to enforce the same even in the absence of anyappropriate legislation.

ProfessorNurul Islam and others vs Government of the People's Republic of Bangladesh& ors 52 DLR 413.

Articles 31 & 32–

The Statehas a duty to protect the ordinary human being from the ill effects of the useof. tobacco–related products.

ProfessorNurul Islam and others vs Government of the People's Republic of Bangladesh& ors 52 DLR 413.

Articles 31 & 32–

The actionof the respondents in converting the open space meant for park is without anylawful authority as the same is violative of fundamental right and detrimentalto the health and well–being of the people of the area.

M SaleemUllah, Advocate and others vs Bangladesh and others 55 DLR 1.

Articles 31, 32 & 102–

In writjurisdiction the Court is unable to give any direction on the house ownersexcept observing a caution that nobody should take the law in their handsviolating the rights protected under the law and the fudamental rights underthe Constitution.

BangladeshSociety for the Enforcement of Human Rights (BSEHR) and others vs Governmentof Bangladesh and others 53 DLR 1.

Articles 31 & 39(2)–

In view ofthe provision made in the Press Council Act prayer for directions upon thegovernment to frame guidelines as to the petitioner's right to reputation hasno basis.

Aminul HaqueShamim (Md) vs Secretary, Ministry of Information and others 55 DLR 90.

Articles 31, 40 & 102–

Thepetitioners who are businessmen have no fundamental right to stop constructionwork undertaken in public interest on the plea of the loss of their business.Business loss is no ground for invoking extraordinary power of the Court underArticle 102 of the Constitution.

Abdul Momenand others vs Dhaka City Corporation 50 DLR 300.

Articles 31, 40 & 102–

Contractualobligation–Writ jurisdiction–Ramna Cafeteria being a property of the governmentunder the PWD is not distinguishable from Government property like fisheries,etc. The Government is equally the owner of all of them which are leased out tothe successful bidders according to the rules in exercise of powers rooted instatute. The contract between the parties was not an ordinary contract betweenordinary tenderer and buyer, rather the Government acted in this case in thecourse of administration of the affairs of the Republic.

ShahadatHossain vs Executive Engineer 44 DLR 420.

Articles 31 & 102–

It isdoubtful whether the impugned order relating to the Bank's claim is appealableand then in the writ petition the very vires of section 1 OA of the PDR Act hasbeen challenged. Writ jurisdiction is the proper jurisdiction for deciding suchconstitutional point.

M MEnterprise Limited vs General Certificate Officer 45 DLR 407.

Articles 31 & 102–

Theprovisions as to fundamental rights in our Constitution are self executory andany violation of the provisions of Article 31 is subject to judicial review andthis court could remedy the wrong by issuing appropriate declarations anddirections for enforcement of any of the fundamental rights.

ProfessorNurul Islam and others vs Government of the People's Republic of Bangladesh& ors 52 DLR 413.

Articles 31 & 102(2)(b)–

Everycitizen has an inalienable right to be treated in accordance with law– Mereinsertion of a section of some law in the order of detention is not enough. Theprovision of law must be strictly followed. Under Article 102(2)(b) of theConstitution the Court is to be satisfied that the detenu is not being held incustody without lawful authority– The Court is to see whether the grounds ofdetention supplied to the detenu are supported by materials.

FaisalMahbub vs Bangladesh 44 DLR 168.

Article 32–

"Savein accordance with law" as mentioned in Article 32 not only refers tocriminal law but also civil law which provides for arrest and detention,namely, for recovery of decretal dues and public dues.

State vsFaisal Alam Ansari 53 DLR (AD) 43.

Article 32–

Keeping ofany prisoner in jail after he served out the sentence amounts to violation ofHuman Rights and Fundamental Rights guaranteed by the Constitution.

FaustinaPereira, Advocate Supreme Court vs State and others 53 DLR 414.

Articles 32 & 33–

Jurisdictionalfacts for detaining a person–Since the detaining authority is curtailing theliberty of a citizen by detaining him on preventive detention, it is exercisinga quasi–judicial authority. To curtail fundamental rights of personal libertyenshrined in the Constitution it is essential that the detaining authority musthave reports and materials, that is 'jurisdictional facts' for exercising powerto detain the detenu under the Special Powers Act.

Anisul IslamMahmood vs Bangladesh 44 DLR 1.

Article 32 & 36–

The PassportOrder itself contemplates that reasons for revocation of a passport should bein writing and a copy thereof be supplied to the person concerned on demand orthe same may be refused in the interest of sovereignty, integrity or securityor in the public interest. The order of revocation of passport having beenpassed without a notice of show cause against any grounds for revocation is notin accordance with law and it violates the fundamental right guaranteed underArticles 15, 27, 32 and 36 of the Constitution.

Syed MokbulHossain vs Government of Bangladesh, represented by the Secretary, Ministry ofHome Affairs, Bangladesh Secretariat, Dhaka and others 44 DLR 39.

Articles 33 & 32–

'Jurisdictionalfacts' for detaining a person–Since the detaining authority is curtailing theliberty of a citizen by detaining him on preventive detention, it is exercisinga quasi–judicial authority. To curtail fundamental rights of personal libertyenshrined in the Constitution it is essential that the detaining authority musthave reports and materials, that is 'jurisdictional facts' for exercising powerto detain the detenu under the Special Powers Act.

Anisul IslamMahmood vs Bangladesh 44 DLR I.

Article 33(1)–

Since thedetenu was arrested under section 54 of the Code it was incumbent upon thepolice to produce her before a Magistrate within 24 hours but the police havingnot done so the right guaranteed to her under the Constitution has beenviolated.

Mehnaz Sakibvs Bangladesh 52 DLR 526.

Article 33(5)–

Thepetitioner having been living in Bangladesh is entitled to the protection underArticle 33(5) of the Constitution and as such the detaining authority was underconstitutional obligation to communicate grounds of detention as soon as maybe.

ProfessorGhulam Azam vs Bangladesh 46 DLR 29.

Article 35( 4)(5)–

The accusedhad already been taken to police remand twice, yet there is nothing before thecourt to show the outcome of such remand– The respondents are directed not togo for further remand of the accused and in case of the ongoing remand heshould not be subjected to physical torture of any kind.

Ministry ofHome Affairs 56 DLR 620.

Article 35–

Submissionthat the principle of 'double–jeopardy is applicable to punishment ofgovernment servant in a departmental proceeding is not acceptable. Protectionin respect of trial and punishment as a bar to conviction and punishment morethan once for the same offence as referred to in this article relates tocriminal prosecution only.

Md SerajulIslam vs The Director General of Food 42 DLR (AD) 199.

Article 35(2)–

Proceedingbefore a departmental enquiry committee is not a criminal proceeding to protecta person's right guaranteed under Article 35(2) of the Constitution against doublejeopardy.

Shaikh (Md)Harun–or–Rashidvs Secretary, Ministry of Jute, Government of the People'sRepublic of Bangladesh and others 49 DLR 596.

Article 35(2)–

The ambitand contents of the guarantee of the fundamental right given in Article 35(2) aremuch slender than those of the Common Law rule in England.

Shaikh (Md)Harun–or–Rashid vs Secretary, Ministary of Jute, Government of the People'sRepublic of Bangladesh and others 49 DLR 596.

Article 35(2)–

The wholebasis of section 403(1) of the Code as well as Article 35(2) is that the firsttrial should have been before a Court competent to hear and determine the caseand to record a verdict of conviction or acquittal–if the court is not socompetent, the whole trial is null and void and it cannot be said that therewas any conviction or acquittal in force such a trial does not bar a subsequenttrial of the accused.

Muhammadullahvs Sessions Judge and others 52 DLR 374.

Article 35(3)–

No stringentprovision has been incorporated in the new law even regarding bail. There is noreason how this reduction of the time limit will affect the petitioners whenthe other conditions relating to trial remains the same. Article 35 clearlyprovides that a person accused of a criminal offence shall have the right to aspeedy trial.

MuhiburRahman Manik and others vs Bangladesh and others 55 DLR 636.

Article 35( 4)–

On the faceof the impugned orders, there is nothing to suggest that the respectivepetitioner was made accused and formal accusation had been made against him. Itcannot, also, be said that as accused person he is being compelled to giveevidence against himself. Article 35(4) of the Constitution will be attractedonly if the proceedings 'started with the accusation' and the person who seeksits protection is already an accused person and he is being compelled to makethe statement.

MustafizurRahman and 3 others vs DG, Anti–Corruption and others 49 DLR 599.

Article 35(4)–

In theenquiry the petitioners can very well controvert the allegations against them.It cannot be suggested that by mere issuance of notices the petitioners arecompelled to give evidence against themselves. Article 35(4) therefore is of noavail to the petitioners.

AKMMuhituddin vs State 51 DLR 274.

Article 35( 4)–

The contentionthat action of notice by the respondent No. 3 was violative of Article 35(4) ofthe Constitution is of no substance since the same were issued in connectionwith an enquiry as regards the information received against the petitioners.The petitioners are not accused of any offence and, as such, protection underArticle 35(4) is not available to them.

Abu Siddiqueand anr vs Ministry of Defence & ors 54 DLR (AD) 154.

Article 35(4)–

There is nofundamental right to privacy or secrecy in respect of property and wealth of aperson and therefore calling upon the petitioners to submit statement of theirproperties does not violate any fundamental right guaranteed by theConstitution.

TariqueRahman vs Director General, Bureau of Anti–Corruption and others 52 DLR 518.

Article 35(4)–

It is notunderstandable how a police officer or a Magistrate allowing 'remand' can actin violation of the Constitution and provisions of other laws including thisCode and can legalise the practice of 'remand'.

BangladeshLegal Aid and Services Trust (BLAST) and others vs Bangladesh and others 55 DLR363.

Article 35(4)–

The verysystem of taking an accused on 'remand' for the purpose of interrogation andextortion of information by application of force is totally against the spiritand explicit provisions of the Constitution.

BangladeshLegal Aid and Services Trust (BLAST) and others vs Bangladesh and others 55 DLR363.

Articles 35(4) & 102–

This Court,in exercise of its power of judicial review when finds that fundamental rights.of an individual has been infringed by colourable exercise of power by thepolice under section 54 or 167 of the Code, the Court is competent to awardcompensation for the wrong done.

BangladeshLegal Aid and Services Trust (BLAST) and others vs Bangladesh and others 55 DLR363.

Article 35(5)–

In case ofmalafide the matter of non–disclosure will be justiciable one. But for theclear constitutional sanction a non–disclosure of fact that was considered tothe prejudice of the detenu ought to be regarded as a violation of basicprinciple of natural justice.

Habiba,Mahmud vs Bangladesh 45 DLR (AD) 89.

Article 36–

The PassportOrder itself contemplates that reasons for revocation of a passport should bein, writing and a copy thereof be supplied to the person concerned on demand orthe same may be refused in the interest of sovereignty, ,integrity or securityor in the public interest. The order of revocation of passport having beenpassed without a notice of show cause against any grounds for revocation is notin accordance with law and it violates the fundamental right guaranteed underArticles 15, 27, 32 and 36 of the Constitution.

Syed MokbulHossain vs Government of Bangladesh, represented by the Secretary, Ministry ofHome Affairs, Bangladesh Secretariat, Dhaka and others 44 DLR 39.

Article 36–

An orderpassed by the passport authority revoking a passport is subject to judicialreview on the ground that the order is malafide or that the reasons for makingthe order are extraneous or they have no relevance with the public interest orthey cannot possibly support the making of the order in the interest of generalpublic. Any procedure which permits impairment of the constitutional right togo abroad without giving a reasonable opportunity to show cause cannot but becondemned as unfair and unjust.

EkramIbrahim Lady vs Bangladesh 47 DLR 256.

Article 36–

TheFundamental Rights of freedom of movement attached to a citizen pervade andextend to every inch of the territory of Bangladesh stretching upto thecontinuental shelf: Per Mustafa Kamal J delivering the Full Court Judgment.

Dr MohiuddinFarooque vs Bangladesh, represented by the Secretary, Ministry of Irrigation,Water Resources and Flood Control and others 49 DLR (AD) 1.

Article 38–

The initialburden of establishing a right claimed under Article 38 is on the applicant andthen the burden moves on to the respondents if they take the plea of reasonablerestriction.

Asaduzzamanvs Bangladesh 42 DLR (AD) 144.

Article 38–

Cannot beinvoked for support, sustenance or fulfilment of every object of anassociation.

Asaduzzamanvs Bangladesh 42 DLR (AD) 144.

Article 38–

Freedom ofassociationArticle 38 guaranteeing this freedom cannot be invoked for support,substance or fulfillment of every object of an association. Though the RedCrescent Society is an association of persons it is · an association suigeners. As the appellant's right does not flow from his right to form anassociation he cannot claim any right under Article 38.

Asaduzzamanvs Bangladesh 42 DLR (AD) 144.

Article 38–

Provisionsof this Article guaranteed the right to every citizen to form association orunion, subject to any reasonable restrictions. This right is not available to aperson other than a citizen of Bangladesh but it is not a restrictiveprovision. Becoming head of a political party itself cannot be a ground to holdthat it is necessary to prevent such a person for the sake of security of thestate.

ProfessorGhulam Azam vs Bangladesh 46 DLR 29.

Article 38–

Formingassociation–The guarantee as to the right of forming an association or union asin Article 38 of the Constitution is limited to the right of formation only. Itdoes not follow that all its purposes and its consequent registration foracting as a bargaining agent is also guaranteed by the Constitution.

Abu Hossainvs Registrar of Trade Unions 45 DLR 192.

Article 38–

The right toconstitute a separate trade union for workers with international affiliationsis not provided for either in the unamended Industrial Relations Ordinance,1969 or in the Amendment Act, 1990. the amended legislation cannot be said tobe violative of the fundamental right on the ground of loss of internationalaffiliation.

Secretary ofAircraft Engineers of Bangladesh & another vs Registrar of Trade Unions andothers 45 DLR (AD) 122.

Article 38–

The right toform an Association or union embraces the right to form a trade union and alsothe right to continue and· carry on the activities of the association. Theright is subject only to reasonable restrictions in the interest of morality orpublic order.

Secretary ofAircraft Engineers of Bangladesh & another vs Registrar of Trade Unions andothers 45 DLR (AD) 122.

Article 38–

Reasonablerestrictions on certain persons becoming directors in public interest has notviolated their right to form association· as share holders in any manner.

NasreenFatema and 20 others vs Bangladesh and others 49 DLR 542.

Articles 39 & 70–

Freedom ofconscience while voting as a member of the Parliament– Freedom of conscienceguaranteed under the Constitution would relate· to private liberty to choosebetween two alternatives as directed by the elector's sense of moral values, inthose areas oflife where the result of one's effort affects none else but onlythe individual. It is not to be extended to a voting system where the member ofthe Parliament is choosing a President both as an individual and in hiscapacity as a representative of the people.

Abdus SamadAzad vs Bangladesh 44 DLR 354.,

Articles 38 and 102–

Appellantcannot claim protection under Article 38 of the Constitution as his right doesnot flow from his right to form an association. He can claim protection underArticle 102 of the Constitution for enforcement of his statutory right but hecannot claim that his right under the statute cannot be modified, altered oraffected by an amendment of the statute.

Asaduzzamanvs Bangladesh 42 DLR (AD) 144.

Articles 39 & 102–

"Personaggrieved" – Its meaning and dimension–In our Constitution the petitionerseeking enforcement of a fundamental right must be a person aggrieved. OurConstitution is not at pari materia with the Indian Constitution on this point.The decisions of the Indian jurisdiction on public interest litigation arehardly apt in our situation. The petitioner is not acting pro bona publico butin the interest of its members. The real question in this case is whether thepetitioner has the right to move the writ petition in a representativecapacity. The High Court Division has rightly relied upon the case of 29 DLR188 where the question has been answered in the negative. The petitioner mayrepresent the employers in the Wage Board but its locus standi to act on behalfof the Constitution is just not there.

BangladeshSangbadpatra Parishad (BSP) vs Bangladesh 43 DLR (AD) 126.

Articles 39(1) & 141(1)–

Theintention of the publication was to make the real Muslims aware about the falseinterpretation given by the so–called half–educated and preachers of Islam. Theallegation does not come within the ambit of the offence of section 295A ofPenal Code against the petitioners.

ShamsuddinAhmed and others vs State and another 52 DLR 497.

Article 39(2)–

Freedom ofspeech and expression occurring in clause (2) of Article 39 of the Constitutionmeans a right to express one's own opinion absolutely freely by spoken words,writing, printing, painting or in any other manner which may be open to theeyes and ears. It thus includes expression of one's ideas on any matter by anymeans including even gestures, postures, banners and signs. It appears to usthat this freedom is wide enough to include expression of one's own originalideas and also expression of one's opinion in the form of comments,explanations, annotations, solutions and answers to questions on the ideasexpressed by others.

Dewan AbdulKader vs Bangladesh 46 DLR 596.

Article 39(2)–

Fundamentalright can never be invoked for violating any provision of law or other man'sright under the law.

BangladeshNational Curriculum and Text– Book Board vs AM Shamsuddin & others 48 DLR(AD) 184.

Article 39(2)–

The right tofreedom of speech and expression as claimed by the writ petitioners does notextend to the right of printing and publishing of 'note–books' or 'text–books'prepared and published by the Text Book Board under statutory authority. TheCourt was not justified in declaring the impugned Act to be ultra vires ofArticle 39(2) of the Constitution.

BangladeshNational Curriculum and Text–Book Board vs AM Shamsuddin & others 48 DLR(AD) 184.

Article 39(2)–

Hartal–Callfor hartal per se is not illegal but where any call for hartal is accompaniedby threat it would amount to intimidation and the caller of hartal or strikewould be liable under the ordinary law of the land.

KhondakerModarresh Elahi vs Government of the Peoples Republic of Bangladesh 54 DLR 47.

Article 39(2)–

Hartal–lawlessness–TheState need not worry that the Court's view on Hartal will disable it frompreserving the peace. It is not suggested that Article 39(2) of theConstitution forbids to prevent imminent lawlessness which will follow fromcall for hartal. (Per Mainur Reza Chowdhury J).

KhondakerModarresh Elahi vs Government of the Peoples Republic of Bangladesh 54 DLR 47.

Article 39(2)–

Hartal is ameans of protest by the people at large or by a group of a particular class ofsociety. It is called for communicating thoughts, discussing public questions,ventilating grievances to the concerned authority regarding legitimate claims.

KhondakerModarresh Elahi vs Government of the Peoples Republic of Bangladesh 54 DLR 47.

Article 39(2)–

For allintents and purposes the declaration that the calling of hartal and holding ofit is illegal is tantamount to enacting a law prohibiting hartal.

KhondakerModarresh Elahi vs Government of the Peoples Republic of Bangladesh 54 DLR 47.

Article 39(2)–

There beingadequate remedy under the existing laws the writ Court will be loath to grantthe declamatory relief sought for by the petitioner. (Per MA Aziz J (agreeing).

KhondakerModarresh Elahi vs Government of the Peoples Republic of Bangladesh 54 DLR 47.

Article 39(2)(a)–

Hartal– Acall for hartal without any threat, expressed or implied, would be anexpression of protest which is guaranteed by Article 39(2)(a) of ourConstitution.

KhondakerModarresh Elahi vs Government of the Peoples Republic of Bangladesh 54 DLR 47.

Article 40–

Right toprofession–The impugned restriction on the petitioner's right to be enlisted asa contractor may be bonafide and in the interest of the Board but when itinterferes with his fundamental right to profession, the restriction cannot beallowed to exist unless authorised by law.

Abdul Jalilvs Chairman 45 DLR 24.

Article 40–

Under thisArticle of our Constitution reasonable restriction can be imposed on a person'sentering upon any lawful profession or occupation and to conduct any lawfultrade or business.

NasreenFatema and 20 others vs Bangladesh and others 49 DLR 542.

Articles 40, 102 & 31–

Contractualobligation–Writ jurisdiction–Ramna Cafeteria being a property of theGovernment under the PWD is not distinguishable from Government property likefisheries, etc. The Government is equally the owner of all of them which areleased out to the successful bidders according to the rules in exercise ofpowers rooted in statute. The contract between the parties was not an ordinarycontract ·between ordinary tenderer and buyer, rather the Government acted inthis case in the course of administration of the affairs of the Republic.

ShahadatHossain vs Executive Engineer 44 DLR 420.

Article 41 –

Right toprofess religion – the right of the Ahmadiyya community to preach theirreligious beliefs is subject to law, public order and morality. The book havingcontained matters which are deliberately and maliciously intended to outragethe religious beliefs of the bulk of the Muslims, the Government was justifiedin forfeiting the book.

BangladeshAnjuman-e-Ahmadiyya vs Bangladesh 45 DLR 185.

Article 41–

It is in no waydesirable for the higher court, whose decision has binding effect on the courtssubordinate to it, to embark on a matter which is totally unconnected with thesubject matter before it.

Islamic LawResearch Centre and Legal Aid Bangladesh vs Eva Sunanda Chowdhury and others 54DLR (AD) 168.

Article 41–

Rights arenot absolute–Restriction may be imposed by law for the sake of public order ormorality. But such restrictions must be reasonable and what is reasonable maydepend on the facts and circumstances under which such restrictions may beimposed. Restrictions may be imposed to regulate the activities of a religiousgroup and only in extreme cases prohibition may be imposed.

DewanbaghDarbar Sharif and another vs Bangladesh and others 54 DLR 413.

Article 41–

Thepetitioner also approached the authority concerned to set up a permanent policecamp in the campus. So, the entry of the police within the campus was notillegal rather the entry was to secure and maintain law and order andtranquillity in the locality. This action is permitted under the provisions ofArticle 41 of the Constitution.

DewanbaghDarbar Sharif and another vs Bangladesh and others 54 DLR 413.

Article 41–

There is nolaw which allows the law enforcing agencies to prohibit a particular religiousgroup from discharging their function for an indefinite period. The lawenforcing agencies will be at liberty to take necessary action if the situationdemands but prohibiting the petitioner and his devotees from entering into thecampus cannot be justified.

DewanbaghDarbar Sharif and another vs Bangladesh and others 54 DLR 413.

Article 42–

Right toproperty– Option for migration to Pakistan cannot take away one's right ofcitizenship as well as right to property guaranteed under this provision of theConstitution. In this view of the matter enlistment of the petitioner's houseas an abandoned property and the decision of the Court of Settlement treatingthe property as such were declared unlawful.

AbdulKhaleque vs Court of Settlement 44 DLR 273.

Article 42–

The veryfact that the inclusion of the disputed property as abandoned property has beenfound to be ex facie void for want of jurisdiction and in violation of Article42 of the Constitution, the petitioner can come directly to this court forprotection of their fundamental right even though an alternative remedy isavailable.

Syeda ChandSultana and others vs Bangladesh and others 48 DLR 547.

Article 42–

Govemmentcan acquire and requisition property by authoirty of law and such acquisitionand requisition cannot be called in question in view of Article 42(2) of theConstitution.

M A Salamalias Abdus Salam vs Government of the People's Republic of Bangladeshrepresented by the Secretary, Ministry of Land Administration and Land Reforms47 DLR 280.

Articles 42 & 102–

Thepetitioner being a "person aggrieved" by enlistment of her house asabandoned property can maintain a writ petition irrespective of whether she hasother equally efficacious remedy or not.

SarwariBegum vs Bangladesh 45 DLR 571.

Articles 42 & 102–

Petitioner'sproperty in question having not fallen within the mischief of AbandonedProperty treating the property as abandoned property and inclusion of the samein the 'kha' list of abandoned buildings are violative of the petitioner'sfundamental right. Nurunnahar Begum and others vs Government of the People'sRepublic of Bangladesh represented by the Secretary.

Ministary ofWorks, Bangladesh and another 49 DLR 432.

Articles 42 & 102–

The writpetitioners can come directly to the High Court Division for protection oftheir fundamental right even though an alternative remedy is available.

Governmentof Bangladesh, represented by Ministry of Works and another vs Syed ChandSultana and others 51 DLR (AD) 24.

Articles 42 & 102(1) & (2)(a)(ii)–

AlhajMohammad Rahimuddin Bharasha vs Bangladesh 46 DLR 130.

Articles 42(2) & 116A–

SinceLegislature is competent to legislate fixing amount of compensation as well asmanner of assessment of compensation, the amendment made in sections 31 and 34of the Ordinance cannot be said to have violated the right of the petitionersto have adequate compensation in respect of the land acquired under theOrdinance.

ShahjahanAli Khan (Md) and others vs Government of Bangladesh and others 52 DLR 99.

Article 43(a)–

Thesubmission that by search and seizure no fundamental right of the petitioner isviolated is misconceived on the facts of the instant case.

Governmentof Bangladesh and others vs Hussain Mohammad Ershad 52 DLR (AD) 162.

Article 43(a)–

Searchconducted with a duly issued search warrant by a competent court under section96 CrPC is a reasonable restriction on the rights enumerated in Article 43(a)of the Constitution. But without complying with the requirement of section 96CrPC no such restriction on the right of a citizen can be imposed. 52DLR (AD) 172.

Articles 44 & 102–

Writjurisdiction challenging the order of the Election Appeal Board, a private bodynot performing any function in connection with the affairs of the Republic, isfound to have been invoked as a sportive chance and not maintainable. Ruleissued thereunder is discharged with cost.

KhorshedAlam, Managing Director of Spark Engineering & Construction Ltd vs Ministryof Commerce, Government of the People's Republic of Bangladesh, Secretariateand others 47 DLR 209.

Article 44–

A governmentservant punished with major penalty in a departmental proceeding can come tothe Supreme Court judicial review under Article 44 of the Constitution readwith Article 102(1) for enforcing fundamental rights after exhausting administrativeremedies including appeal and remedies before the Administrative Tribunal andAdministrative Appellate Tribunal. Case relied on is Sampad Kumar vs Union ofIndia AIR 1987 (SC) 386.

SerajulIslam vs DG Food 43 DLR 237.

Articles 44 and 94–

Doctrine ofbasic feature–In our context, it has indigenous and special difficulties foracceptance–'Basic features' in relation to which period–What were basic to ourConstitution when it was promulgated on 16–12–1972–'Basic features' have beenvaried in such abandon and with such quick succession · that the credibility inthe viability of the theory of fundamentally is bound to erode– The experienceof abandoning this Supreme Court and establishing two altogether differentCourts, the Supreme Court and the High Court, in a unitary state byProclamation Order No. IV of 1976 and then again doing away with the same byrestoring the integrated Supreme Court by Proclamation Order No. I of 1977 wascited as instances of the non–viability of the theory.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Articles 44 and 94 to 116–

The impugnedamendment has violated Articles 44 and 102– It has disrupted the provisionsrelating to the judiciary embodied in Article 94 by adding alien concept by wayof introducing 'Permanent Benches'–The amendment has also expressly contravenedArticle 101.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Articles 44, 102(1)(5) & 117(2)–

"Exhaustionrule"– No one is entitled to move the Court for a supposed or threatenedinjury until all the available remedies of the administrative authorities havebeen exhausted including appeal to the administrative superior. The 'exhaustionrule' cannot be avoided on the ground of irreparable injury or expeditiousnessof judicial remedy. After exhausting all available remedies the petitioner canattempt to move this Court for enforcement of fundamental rights.

Abdul HannanKhan vs Ministry of Home Affairs 43 DLR 131.

Articles 44, 100 (5) and 114 –

Sub–article(5) of Article 100 is inconsistent with Articles 44 and 114.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Articles 44 and 114–

Interpretationof constitutional amendment–Articles 44 and 114 to be read together to find outthe mandate of the Constitution–The entire Constitution is to be looked into ininterpreting the Constitution.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) I 65.

Articles 44(1)(2), 100(5), 102 and 114–

Two sests ofCourts created by sub–article(5) of Article 100–Constitutionality of amendment–Theamendment is hit by Article 114–Setting up of subordinate Courts by lawoccurring in Article 114 must not be of co–ordinate jurisdiction or competewith Article 44(2) which speaks of "without prejudice to the power of HCDivision under Article 102".

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 45–

A member ofthe disciplined force can move the High Court Division for enforcement offundamental rights subject to the provisions of Article 45.

Col MdHashmat Ali (Retired) of Bangladesh Army Medical Corps vs Government ofBangladesh and another 47DLR (AD) 1.

Article 45–

Provision ofthis Article does not apply in a case where the order is passed for promotionof a member of the disciplined force and, as such, the order impugned here is notimmune from judicial review.

MajorGeneral Moinul Hossain Chowdhury vs Government of Bangladesh, and others 50 DLR370.

Articles 45, 102 & 134–

Where anorder is passed retiring a member of disciplined force such an order is beyondthe scope of judicial review under Article 102 of the Constitution as such theorder comes within the purview of Article 134 of the Constitution.

MajorGeneral Moinul Hossain Chowdhury vs Government of Bangladesh, and others 50 DLR370.

Articles 45, 102 & 134–

A member ofany disciplined force will not be entitled to any remedy if he is aggrieved byany decision of a Court unless the decision is coram non Judice or malafide, orby any order affecting his service or by order of the President or by anyviolation of fundamental right resulting from application of a disciplinary lawor the maintenance of discipline.

Col MdHashmat Ali (Retired) of Bangladesh Army Medical Corps vs Government of Bangladeshand another 47 DLR (AD) 1.

Article 47(2)–

BangladeshBank (Staff) Regulations–Bangladesh Bank Staff Regulations are protectedlegislation like its parent law, the Bangladesh Bank Order. Theconstitutionality of these Regulations stand beyond any question and cannot bedeclared void being inconsistent with the equality clause of the Constitution.

BangladeshBank and others vs Mohammad Abdul Mannan 46 DLR (AD) 1.

Constitution of Bangladesh, 1972 [Articles 48 - Articles 93]

Constitutionof Bangladesh, 1972

Articles 48, 65(1), 94 and 142–

Interpretationof statute–Amicus curiae's inerpretation of the use of prepositions "of'and "for" in case of President, Parliament and Supreme CourtSignificanceof the use of prepositions "of' and "for" relating to theExecutive, Legislature and Judiciary–Whether Parliament has no power to amendArticle 94 of the Constitution as contended by amicus curiae.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Articles 48, 70, 75, 102 & 119–

Abdus SamadAzad MP vs Bangladesh 43 DLR 607.

Articles 55(2) and 102–

When thedetenu alleges that his detention was not ordered by the appropriate person,the Government is required to disclose necessary facts to satisfy the Courtthat the order was passed by the proper person in accordance with the Rules ofBusiness.

Bangladeshvs Dr Dhiman Chowdhury and others 47 DLR (AD) 52.

Articles 55(2)(4) & 133–

In ourcountry as well the void created by the absence of law and rules under Article133 can be filled up by executive power under Article 55(2) expressed to betaken in the name of the President (Article 55(4). Such exercise of power isnot unknown or without precedent in our jurisdictions.

Bangladesh,represented by the Secretary, Ministry of Establishment vs Shafiuddin Ahmed and2 others 50 DLR (AD) 27.

Article 55(4)–

The Cabinetdecision dated 3–11–91 without publication in the Official Gazette cannot betreated as a guideline and add thereto that it was not an executive action interms of Article 55(4) of the Constitution.

Bangladesh,represented by the Secretary, Ministry of Establishment vs Shafiuddin Ahmed and2 others 50 DLR (AD) 27.

Articles 56(6) & 133–

Theconstitutional provisions in Article 133 will govern the terms and conditionsof service of superior posts. Rules of Business will only be supplementalthereto. No Committees could be constituted in exercise of any"exceptional powers" or "inherent power" or "sovereignexecutive power" of the Government.

Bangladesh,represented by the Secretary, Ministry of Establishment vs Shafiuddin Ahmed and2 others 50 DLR (AD) 27.

Article 58(2) (now repealed)–

The natureof the document of which the petitioner pleads protection and the relatedmatters being in the facts of the case a mixed question of fact and Law, it isnot yet time to consider this constitutional question while the document isstill not ready for observation with all its factual clothings.

Moudud Ahmedvs State 48 DLR (AD) 42.

Article 58(2)–

Criminaltrial– Constitutional protection–where the State does not take shelter ofarticle 58(2) rather it produces through its machinery for procuring thedocuments by submitting the charge–sheet, statement under section 161 CrPC andthe police record, the protection of Article 58(2) is of no avail to thepetitioner.

Moudud Ahmedvs State 48 DLR 108.

Article 58(2)–

Unless itcan be shown by a party that his claims of protection under Article 58(2) is onthe basis of "Public interest" Article 58(2) hardly has any role toplay.

Moudud Ahmedvs State 48 DLR I 08.

Article 58(2)–

The ordermade by the petitioner as a Minister being something more than his advice tothe President, the Court's jurisdiction is not ousted from enquiry into the sameby reason of Article 58(2).

Moudud Ahmedvs State 48 DLR 108.

Articles 59 & 60–

LocalGovernment– It is meant for management of local affairs by locally electedpersons. If government officers or their henchmen are brought to run the localbodies, there is no sense in retaining them as Local Government bodies.Considering the origin, growth and development of local government institutionsat different levels of the administration over one and a half centuries, it isfound that Local Government is an integral part of the democratic polity of thecountry.

Kudrat–e–ElahiPanir vs Bangladesh 44 DLR (AD) 319.

Articles 59 & 60–

Ziaur RahmanKhan MP and others vs Bangladesh and others 49DLR 491.

Articles 59, 60, 102 & 152(1)–

Local bodies–Their composition–During the long gap of time local government in various formsand names were constituted by the authority of Martial Laws. Now that theprovisions of the Constitution are back all local bodies shallhave to fulfilthe constitutional requirements. Upazila being not an administrative unit anessential constitutional requirement for the Upazila Parisahd to be a localgovernment is not fulfilled. It is not also wholly an elected body. ThisParishad not being a local body under the Constitution its abolition violatesno provision of the· Constitution so as to attract the relief under Article 102of the Constitution.

Kudrat–e–ElahiPanir vs Bangladesh 44 DLR (AD) 319.

Articles 59 & 152(1)–

"Administrativeunit" Article 152(1) has given a particular meaning of"Administrative unit". In this Article the words "district orany other area" are to be read conjunctively, and if it is done, adistrict is found to be an administrative unit, and for the purpose of Article59, that is to say, for establishing a Local Government there, no designationby law is necessary. But as regards "any other area" it will be an"administrative unit" only ifit is specifically designated as such bylaw.

Kudrat–e–ElahiPanir vs Bangladesh 44 DLR (AD) 319.

Article 61(1)(b)–

To upholdthe contention of Asrarul Hossain that even if a member remained absent withoutleave of the House for ninety consecutive sitting days he may not vacate hisseat because the sitting days are · never consecutive in the sense of beingcontinuous would be to render this article a dead letter which as a rule thecourt will never accept.

SpecialReference No.I of 1995. 47 DLR (AD) 111.

Articles 65 & 148–

Member ofthe Parliament–Seats for Women–A person does not become a member of theParliament until he enters upon the office by making and subscribing an oath inaccordance with the Third Schedule of the Constitution. Only those personselected to the Parliament under Article 65(2) who have made the oath becomeelectors in respect of the thirty seats reserved for women under Article 65(3).

Fazle Rabbivs Election Commissioner 44 DLR 14.

Article 65(1)–

The HighCourt Division wrongly held that section IOA of the Act provides arbitrarypower without a provision for hearing. It is the policy of the legislature tomake an enactment to that effect. It cannot be said that the law is bad becauseit is not in consonance with the principle of natural justice and it is harshand arbitrary.

BangladeshKrishi Bank vs Meghna Enterprises and another 50 DLR (AD) 194.

Articles 65(1) & 83–

Under ourConstitution there is considerable intermingling of the governmentalfunctions, or large part of the legislative function is carried by Ordinancespromulgated by the Head of the State and in considering the validity of the impugnedamendments and the notifications issued by the National Board of Revenue underthe provisions of section 3(4) of the Excise and Salt Act, 1944 they had thesanction oflaw and, as such, taxation power was also expressly saved by Article83 of the Constitution.

Bangladeshand ors vs Eastern Beverage Industries Ltd and another 56 DLR (AD) 153.

Articles 65(2)(3) & 67(1)(a)–

Election toreserved seats–Whether the election needs to wait for completion of oath byevery one of the members of the 300 constituencies–It is nowhere provided inthe Constitution that if one or some of the 300 representatives declared bydirect election do not make the oath, the election to the 30 seats reserved forwomen members cannot be held.

Fazle Rabbivs Election Commissioner 44 DLR 14.

Article 65(3)–

Reservationof seats for women in the Parliament–There is no substance in the contentionthat after the period for reservation of thirty seats expired, no extension asmade by the Constitution (Tenth Amendment) Act, 1990 could be done. Clause 3 ofArticle 65 was never deleted. It remained in the Constitution. The substitutionof clause 3 by the new one cannot be challenged as ultra vires.

Dr. AhmedHussain vs Bangladesh 44 DLR (AD) 109.

Articles 65(3) & 122(1)–

Women members–Reservation of seats for them in the Parliament whether violative of the basicstructure of the Constitution–The reservation of seats exclusively for womenmembers was already there in the Constitution from the very date of itscommencement. Repeal and substitution of previous clause (3) of Article 65 by asimilar clause (3) in the said Article by the Constitution (Tenth Amendment)Act, 1990 (Act No. 38 of 1990) cannot be said to be violative of the basicstructure of the Constitution.

Fazle Rabbivs Election Commissioner 44 DLR 14.

Article 66–

HussainMohammad Ershad vs Zahedul ls/am Khan and others 54 DLR (AD) 1.

Article 66(2)(c)–

A personfound to be a citizen of Bangladesh as well as of any foreign state either onthe date when he filed nomination paper for the parliamentary election or if heacquired citizenship of a foreign state after he was elected he becomesdisqualified to contest the election or to continue as a member of theParliament.

Abdul Halim(Md) vs Abul Hasan Chowdhury Kaiser and others 54 DLR 42.

Article 66(2)( d)–

TheReturning Officer, having taken the view that because of the pendency ofappeals respondent No 3 will not be disqualified from contesting the ensuingelection, it cannot be said that he had no authority to so decide and that hisdecision suffers from malice in law. If an alternative interpretation ispossible with regard to the issue in question, namely, the effect ofpendency ofappeals against the orders of conviction and sentence, that will be an electiondispute for the Election Tribunal to decide after the election if thepetitioner or any affected candidate elects to prefer an election petition tothe Tribunal.

AKM MayeedulIslam vs Bangladesh Election Commission and others 48 DLR (AD) 208.

Article 66(2)(d)–

Per ABMKhairul Haque J (agreeing) : The intended disqualification was meant forconviction for a graver offence and not in every conviction.

HussainMuhammad Ershad vs Abdul Muqtadir Chowdhury and another 53 DLR 569.

Article 66(2)(d)–

Per ABM KhairulHaque J (agreeing) : The consequence of the presence of the word 'moralturpitude' in sub–clause (d) of clause (2) of Article 66 is of immenseimportance. It specifically requires thatin order to bring a candidate or asitting member within the mischief of disqualification, he is not only to besentenced for a period of not less than two years but his conviction for theoffence must be of moral turpitude.

HussainMuhammad Ershad vs Abdul Muqtadir Chowdhury and another 53 DLR 569.

Article 66(2)(d)–

The wordingsof the Constitution are crystal clear that a member would be at oncedisqualified if he is convicted of an offence involving moral turpitude andsentenced to imprisonment for a period not less than two years.

HussainMuhammad Ershad vs Abdul Muqtadir Chowdhury and another 53 DLR 569.

Articles 66(2)(d), 67 & 70–

The mereinformation of the fact of disqualification or other reasons for vacating theseat by the Speaker to the House will not ipso facto raise any dispute unlesssuch facts are disputed by the Member concerned. The dispute has to be real andexpress and it cannot be inferred.

HussainMuhammad Ershad vs Abdul Muqtadir Chowdhury and another 53 DLR 569.

Articles 66(2)(d), 67(1)(d), 123 & 125–

It is notdeemed expedient to allow such construction on Articles 66(2)(d) and 67(1)(d)of the Constitution as to mean that the conviction and sentence would create anembargo by way of disqualification from the date of conviction and sentenceawarded by the trial Court.

HussainMuhammad Ershad vs Abdul Muqtadir Chowdhury and another 53 DLR 569.

Articles 66(2)(d) & 103–

Theaggrieved person should be allowed to go upto the Appellate Division by filinga leave petition under Article 103 of the Constitution and until that forum isexhausted his conviction and sentence cannot be taken to be final andconclusive for the disqualification to operate.

HussainMuhammad Ershad vs Abdul Muqtadir Chowdhury and another 53 DLR 569.

Article 66(2)(dd)–

There ismuch force in the submission that by seeking election to the Parliament therespendent has accepted the order of his dismissal which terminates hisrelationship with the office of profit in the service of the Republic.

Bangladesh,represented by Secretary, Establishment Division & ors vs Mahbubuddin Ahmed50 DLR (AD) 154.

Article 66 (2A)–

Office ofProfit– Clause (2A) had been incorporated in the Constitution as it wasnecessary for some purpose of the authorities according to the need of thecircumstances and it is limited only for the purpose of Article 66 of theConstitution and for no other purpose.

Abu BakkarSiddique vs Justice Shahabuddin Ahmed 49 DLR 1.

Articles 66(2A) & 99(1)–

Office ofProfitln considering the provisions of Article 99(1) along with the provisionof Article 66(2A) of the Constitution, Clause (2A) shall not include theoffices of President, the Prime Minister and other constitutional office–holdersin the category of office of profit in the service of the Republic byimplication.

Abu BakkarSiddique vs Justice Shahabuddin Ahmed and another 49 DLR 1.

Article 66(4)–

Theauthority, contemplated by the Constitution and the Law, to take action on adispute whether a seat of Parliamant is vacated or not, is the ElectionCommission and not the Speaker. The law is so specific and the procedure laiddown is so elaborate that the assumption by the Speaker of the role of decidingwhether there is a dispute, to the exclusion of the Election Commission, makesthe constitutional provisions on anti defection redundant. The Speaker has nopower to adjudicate upon the matter in disputs. He is only to act as a 'PostOffice'.

KhondkerDelwar Hossain and another vs Speaker, Bangladesh Jatiyo Shangshad (Parliament)and another 51 DLR 1.

Article 66(4)–

A meredecision that the member concerned vacated the seat in the parliament onaccount of his conviction in a criminal offence involving moral turpitude willnot ipso facto raise any dispute referrable to the Election Commission unlessthe member concerned or any interested party disputed such decision.

AnwarHossain vs Election Commission of Bangladesh and others 53 DLR 546.

Articles 66(4) & 70–

Article 70as referred to in Article 66(4) does not stipulate nor require that theresignation from a party should be in writing. Resignation by conduct orotherwise against the party discipline and dictates is also envisaged underthese Articles.

KhondkerDelwar Hossain and another vs Speaker, Bangladesh Jatiyo Shangshad (Parliament)and another 51 DLR 1.

Article 67–

When aperson is convicted of and sentenced to suffer imprisonment for a minimumperiod of two years he cannot be elected a Member of the Parliament and cannotretain his position as such Member.

HussainMohammad Ershad vs Zahedul Islam Khan and others 54 DLR (AD) I.

Article 67(1)(b)–

'Absent',meaning and consequence of–If a member or members of Parliament remain absentwithout the leave of the Parliament for ninety consecutive sitting days he orthey do it on pain of vacating his or their seats. The philosophy behind thisis that his or their constituencies cannot be left unrepresented in theParliament for an indefinite period. There must be by–election in those seatsfor electing new members in their places to represent the people. This is thedemocratic and constitutional process.

SpecialReference No.I of 1995. 47 DLR (AD) 111.

Article 67(1)(a)–

The use ofthe expression "first meeting of Parliament" in Article 67(1)(a) ofthe Constitution itself clearly indicates that even if some persons elected tothe Parliament fail to make and subscribe the oath or affirmation prescribedfor member of Parliament election to the 30 seats exclusively reserved forwomen members under Article 65(3) of the Constitution shall take place so thatthe first meeting of Parliament may take place as soon as possible after thegeneral election.

Fazle Rabbivs Election Commissioner 44 DLR 14.

Article 67(1)(b)–

Thesupplementary affidavit· contains some bare statements without any positivematerials to show that the respondent Nos.3–5 have absented themselves fromParliament without leave of the Parliament for 90 consecutive sitting days.Therefore, it is difficult to hold that they ceased to be members of theParliament by operation of Article 67(1)(b) of the Constitution.

AnwarHossain Khan vs Speaker of Bangladesh Sangsad Bhavan and others47 DLR 42.

Article 67(1)(b)–

Walkout,boycott– They mean the same thing i.e .. absent and result in vacation of seat–Walkout, consequent period of non–return and boycott, call it by whateverepithet, mean the same thing, i.e. absent as provided in Article 67(1)(b) andwould result in vacation of seat in the parliament if the other conditions arepresent, namely, being absent without the leave of parliament, for ninetyconsecutive sitting days.

SpecialReference No. I of 1995. 47 DLR (AD) 111.

Article 67(1)(b)–

In computingthe period of ninety consecutive sitting days the period between two sessionsand even adjournments in a particular session between sitting days should beexcluded.

SpecialReference No I of 1995. 47 DLR (AD) 111.

Articles 67(1)(a) & 65(2)(3)–

Fazle Rabbivs Election Commissioner 44 DLR 14.

Article 68–

When thepower is there in the Constitution, non–invocation of the specific power in theconcerned legislation will not make the privilege granted outside of the scopeof the concerned President's Order.

Dr AhmedHusain vs Bangladesh, represented by Secretary, Minsitry of Law and Justice 51DLR (AD) 75.

Article 70–

Freedom ofconscience while voting as a member of the Parliament– Freedom of conscienceguaranteed under the Constitution would relate to private liberty to choosebetween two alternatives as directed by the elector's sense of moral values, inthose areas of life where the result of one's effort affects none else but onlythe individual. It is not to be extended to a voting system where the member ofthe Parliament is choosing a President both as an individual and in hiscapacity as a representative of the people.

Abdus SamadAzad and others vs Bangladesh 44 DLR 354.

Articles 70 & 39–

Freedom ofconscience while voting as a member of the ParliamentFreedom of conscienceguaranteed under the Constitution would relate to private liberty to choosebetween two alternatives as directed by the elector's sense of moral values, inthose areas of life where the result of one's effort affects none else but onlythe individual. It is not to be extended to a voting system where the member ofthe Parliament is choosing a President both as an individual and in hiscapacity as a representative of the people.

Abdus SamadAzad vs Bangladesh 44 DLR 354.

Articles 70 & 75–

Question of voidabilityof a legislation and stay of election–For the reasons that he who seeks equitymust do equity and must come with clean hand at the earliest opportunity andthat the petitioners slept over the matter for a considerable period of timeand preferred to challenge the Act only after the promulgation of the Ordinancewhich has since been repealed and the election was knocking at the door and allformalities thereof were observed, postponement of election at such a stage byan order of stay would put a clog in the way of democratic process oftransition to Parliamentary system and that the petitioners failed to make outa prim a facie case for ad interim stay and the balance of convenience andinconvenience was also in favour of the respondents, and in that view, withoutany reference and comment as to the merit of the writ petition, prayer for adinterim stay is refused and the matter be placed before the regular Bench onthe reopening of the Court for hearing of the substantive application.

Abdus SamadAzad MP & others vs Bangladesh 43 DLR 607.

Article 70(1)–

The resignationof the two BNP members of Parliament from their party under Article 70(1) andthe dispute caused by it, as a whole, does not fall within the meaning of aproceeding in Parliament, the conduct of business and definitely not a matterfalling within the meaning of 'regulation of procedure' or' maintanance oforder' in Parliament.

KhondkerDelwar Hossain and another vs Speaker, Bangladesh Jatiyo Shangshad (Parliament)and another 51 DLR 1.

Article 70(1)–

In order todecide whether the events complained of constituted circumstances to cause a vacancy in the seat of Member ofParliament it should be found out as a fact whether the political party towhich the concerned Member belongs was an opponent or an alliance of thepolitical party in whose favour he has acted at the time such event took place.

AnwarHossain vs Election Commission of Bangladesh and others 53 DLR 546.

Article 70(1)–

In theinstant case when the Election Commission found from the statement of theSpeaker that the Speaker himself was convinced that the allegations containedin the letter did not constitute any circumstance falling under Article 70(1)of the Constitution, the Election Commission was no required to ask for thestatements from the petitioner, rather it was required in law to refer thematter back to the Speaker.

AnwarHossain vs Election Commission of Bangladesh and others 53 DLR 546.

Article 74(6)–

An outgoingSpeaker remains as Speaker until his successor enters office.

FazlurRahman (Md) vs Md Abdul Hamid, Advocate and others 56 DLR 448.

Article 78(1)–

The barunder this Article pertains to internal proceeding of the Parliament, theformal transaction of business with the Speaker in the chair or in a properlyconstituted committee. But the abstention and action of the respondents outsidethe Parliament does not mean and include the internal proceeding of the House.

AnwarHossain Khan vs Speaker of Bangladesh Sangsad Bhavan and others 47 DLR 42.

Article 78(1)–

Resignation tothe Speaker by members of the Parliament does not fall within the ambit of theexpression "Proceeding of Parliament" for the reason that as neitherresignation in writing "addressed to the Speaker" nor"submission of the resignation letters to him" is a proceeding of theParliament.

Raufique(Md) Hossain vs Speaker, Bangladesh Parliament and others 47 DLR 361.

Article 78(3)–

The immunityunder Article 78(3) of the Constitution is absolute and unqualified.

Ataur RahmanKhan vs Md Nasim, Member of Parliament and Minister of Home Affairs, Governmentof the People's Republic of Bangladesh and another 52 DLR 16.

Article 78(3)–

Immunityenjoyed by a Member of Parliament cannot be curtailed in any manner and noCourt can take any legal proceeding against a Member of Parliament foranything he says in the Parliament during the course of business of theParliament.

Ataur RahmanKhan vs Md Nasim, Member of Parliament and Minister of Home Affairs, Governmentof the People's Republic of Bangladesh and another 52 DLR 16.

Article 78(4)–

Merely becauseit was telecast and broadcast through Television and Radio and published in thedifferent newspapers, it cannot be said that the statements were made not onlyin Parliament, but also outside the Parliament.

Ataur RahmanKhan vs Md Nasim, Member of Parliament and Minister of Home Affairs, Governmentof the People's Republic of Bangladesh and another 52 DLR 16.

Article 83–

Tax andduty, how levied and collected–Article 83 of the Constitution and section 18,Customs Act. Article 83 of the Constitution makes it quite clear that no taxshall be levied or collected except by and under authority of an Act ofParliament.

Section 18Customs Act contains the "rate of duty" of customs. The "rate ofduty" of customs can be prescribed only by the Legislature from time totime either in the Finance Act or in the Customs Act or in other appropriatelegislation and this power cannot be delegated by the Parliament.

A Hannan vsCollector of Customs 40 DLR 273.

Article 93–

Making anOrdinance– Plea of malafide–intention of the law making authority, whether thePresident in the case of an Ordinance, or the Parliament in the case ofenacting a legislation, is irrelevant if they got power to make Ordinance oract on a given subject. When an Ordinance was made an Act of the Parliamentwithin the prescribed time, the ground for assailing the Ordinance is no longeravailable.

Kudrat–e–ElahiPanir vs Bangladesh 44 DLR (AD) 319.

Article 93–

Ordinancemaking powerArticle 93 authorises the President to make and promulgate anyordinance if he is satisfied that circumstances exist which render immediateaction necessary when the Parliament is not in session. Whether circumstancesexist is not a matter to be decided by the Court–it depends exclusively on thesatisfaction of the President which cannot be questioned in Court.

Ahsanullahvs Bangladesh 44 DLR 179.

Articles 93(1), 102 & 142–

The verylegislation shows that Khondaker Moshtaque Ahmed as the President ofBangladesh promulgated the Indemnity Ordinance under Article 93(1) of theConstitution, but he did not exercise his power as the Martial Law Authority.So, the Ordinance is an ordinary, simple, civil legislation and as such thesame can be amended or repealed by ordinary legislation without recourse toArticle 142 of the Constitution.

ShahriarRashid Khan vs Bangladesh, represented by the Secretary, Ministry of Law andParliamentary Affairs and others 49 DLR 133.

Constitution of Bangladesh, 1972 [Preamble – Article 25]

Constitutionof Bangladesh, 1972

Preamble –

Amendment of– Preamble now is an entrenched provision of the Constitution that cannot beamended by the Parliament alone.

AnwarHossain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Preamble –

Pole star ofthe Constitution – One of the fundamental aims of our society is to secure therule of law for all citizens and Part VI (Judiciary) and other provisions havebeen incorporated in the Constitution in furtherance of that aim.

AnwarHossain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Preamble and Articles 7 and 8–

Contentionthat Parliament has unlimited power is unsound–Neither Preamble nor Article 8can be amended except by referendum–Article 7 stands between the Preamble andArticle 8 as statute of liberty, supremacy of law and rule of law–It is thepole star of our Constitution.

AnwarHossain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Preamble & Articles 7, 8, 26, 44, 100and142 (1)(1A)–

Interpretationof Constitutional provisions – Our Constitution is a controlled one. There islimitation on the legislative capacity of Parliament. Preamble and Article 8is unamendable except by referendum. The Constituent power is with the peopleof Bangladesh–Exclusiduary provision of the kind incorporated in Article 26 byamendment has not been incorporated in Article 7–Law in Article 7 includes anamending law–Contention of the Attorney–General about the non–obstante clausein Article 142(1) is bereft of any substance as that clause is merely anenabling provision for amending the Constitution but by interpretative decisionthat clause cannot be given the status for swallowing up the constitutionalfabric.

AnwarHossain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Preamble and Articles 27, 31, 32, 44 and 94 to 116A–

Theamendment is being struck down on the ground of the amendment'sirreconcilability with rule of law as envisaged in the preamble.

Court inunitary state and in Federal State–Distinction pointed out–Only one Court withfull plenary power in the unitary state and in the Federal state over the wholestate–Our founding fathers have devised a composite Supreme Court to emphasesthe oneness of the Supreme Court. Supreme Court was bifurcated into SupremeCourt and High Court in 1976 but was restored to its original position.

AnwarHossain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Preamble and Articles 27, 31, 32, 44 and 94 to 116A–

TheConstitution remains at the apex because it is the supreme law–It remains suigeneris only so long as it is accepted by the people. That was pointed out inMridha's case.

AnwarHossain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Preamble and Articles 27, 31, 32, 44 and 94 to 116A–

Applicabilityof the general doctrine of ultra vires to both law and to an amendment of theConstitution on the touchstone of Article 7 as contended by the appellant'slawyer, if acceptable.

The validityof an amendment of the Constitution cannot be examined on the touchstone ofArticle 7.

AnwarHossain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 7–

"TheKing is not above the law but under the law."

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 7–

Parliamentis the creation of this Constitution and all powers follow from this articlenamely, Article 7. No Parliament can amend this. On the revival of theConstitution after being suspended, Article 7 stood revived.

AnwarHossain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 7–

AsConstitution is a solemn expression of the will of the people, the supreme lawof the Republic, any of its violations by anybody including the members of theParliament can be called in question by each and every citizen of Bangladesh.

AnwarHossain Khan vs Speaker of Bangladesh Sangsad Bhavan and others 47 DLR 42.

Article 7–

The decisionof the Government to participate in the UN sponsored multinational force toHaiti to help restoration of the legitimately elected government there wastaken pursuant to the UN Resolution No.940 and Bangladesh being a member statehas taken the decision on the authority of the constitutional framework andinternational commitment. The decision is not derogatory to any provision ofthe Constitution including Article 7.

M SaleemUllah vs Bangladesh and another 47 DLR 218.

Article 7–

Article 7does not contain empty phrases. It means that all the legislative, executiveand judicial powers conferred on the Parliament, the Executive and theJudiciary respectively are constitutionally the powers of the people themselvesand the various functionaries and institutions created by the Constitutionexercise not their own indigenous and native powers but the powers of thepeople on terms expressed by the Constitution. Per Mustafa Kamal J deliveringThe Full Court Judgment.

Dr MohiuddinFarooque vs Bangladesh, represented by the Secretary, Ministry of Irrigation,Water Resources and Flood Coontrol and others 49 DLR (AD) 1.

Articles 7, 8, 11, 39 & 70–

Right tovote or secret vote is nowhere spelt out in the Constitution. Democraticinstitutions as provided in the Constitution spell out no narrowing of choiceof representatives either by direct or by secret ballot. The provisions of theConstitution left it to be decided on the basis of political expediency andnecessity at a given time. Voting by secret ballot or by open ballot or by adivision are all accepted modes of voting and different ways of choosingrepresentations are not foreign to our Constitution. Only because an electionis ordered to be held by open vote, it would not be an illegal election. Theright to choose according to one's own conscience would be existing in both theprocedures, open vote or secret vote.

Abdus SamadAzad vs Bangladesh 44 DLR 354.

Articles 7, 8, 11 & 28 (4)–

Indirectelection for reserved seats whether destroyed the principle of democracy–Asystem of indirect election cannot be called undemocratic. It is provided inthe Constitution itself. Clause 4 in Article 28 provides that nothing in thatArticle shall prevent the State, which expression includes Parliament, from.making special provision in favour of women as done by Act No. 38 of 1990.

Dr. AhmedHussain vs Bangladesh 44 DLR (AD) 109.

Articles 7 and 26–

Interpretationof statute Constituent power'–Where this power is vested in Parliament–Whetherthe 'Constituent power' is a derivative one making the amendment immune fromchallenge–validity test–An amendment of the Constitution is not included inlaw' within the meaning of Article 7 in the same way as it is not law inArticle 26.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Articles 7, 26, 142 and 152–

Law asdefined in Article 152–Any law inconsistent with the Constitution shall, to theextent of such inconsistency, be void– Then judiciary is to consider thevalidity or otherwise of a law (Act of Parliament) and declare it void if it isin conflict with Article 7.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Articles 7 & 46–

Theexplanation that the incident of 15th August, 1975 was a revolution donethrough military coup d'etat and during commission of such army coup it couldnot be ascertained who killed whom and people killed cannot be isolated fromthe incident of killing of the President is absolutely unfortunate and cannotbe accepted.

ShahriarRashid Khan vs Bangladesh, represented by the Secretary, Ministry of Law andParliamentary Affairs and others 49 DLR 133.

Articles 7 and 47–

BangladeshShilpa Bank Order, 1972 is a protected legislation under the Constitution. Noprovision of the Order shall be deemed to be void or unlawful on the ground ofinconsistency or repugnancy to any provision of the Constitution. Any of theArticles can be resorted to by the Bank and may even be combined and it is notincumbent upon the Bank to take recourse to Article 33 at the first instancebefore proceeding under Article 34.

New IdealEngineering Works Ltd vs Bangladesh Shilpa Bank 42 DLR (AD) 221.

Articles 7, 48, 58 and 80–

ConstitutionalScheme–Basic features are unamendable and unalterable.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Articles 7, 80(4) and 142(i)(ii)–

Interpretationof Constitution–The laws amending the Constitution are lower than the Constitutionand higher than the ordinary laws–Difference of legislative process for passinglegislations under Article 80(4) and Article 142(i)(ii) distinguished – Basicfeature–The fabric of the Constitution cannot be dismantled by Parliament–Theamendment is to be tested on the touchstone of Article 7.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Articles 7 and 152–

Whether theexpression 'any other law' occurring in sub–article(2) of Article 7 would alsoinclude a law amending the Constitution itself enacted under the 'Constitutentpower' inasmuch as the same way as an ordinary law encted under the ordinarylegislative powerThe contention that constituent or legislative, Parliamentderives the power from the Constitution and that law amending the Constitutionhaving a higher status should be subjected to Article 7 for examining itslegitimacy as any other law is not acceptable.

AnwarHussain Chowdury vs Bangladesh 41 DLR (AD) 165.

Article 7(1), 59 & 152(1)–

"Administrative unit." Article152(1) has given a particular meaning of "Administrative unit". Inthis Article the words "district or any other area" are to be readconjunctively, and if it is done, a district is found to be an administrativeunit, and for the purpose of Article 59, that is to say, for establishing aLocal Government there, no designation by law is necessary. But as regards"any other area" it will be an administrative unit" only if itis specifically designated as such by law.

Kudrat–e–ElahiPanir vs Bangladesh 44 DLR (AD) 319.

Articles 7(2) & 26(2)–

As theOrdinance No.50 of 1975 is void it will not create any benefit or vested rightin favour of the persons for whom it was made. The benefit of section 6 of theGeneral Clauses Act is not available to them and their prayers for declaringthe criminal proceedings pending against them illegal cannot be accepted,because the Indemnity Ordinance itself is void being repugnant to theConstitution.

ShahriarRashid Khan vs Bangladesh, represented by the Secretary, Ministry of Law andParliamentary Affairs and others 49 DLR 133.

Articles 7(2), 94 and 100(5)–

Interpretationof Constitutional provision–Sub–article (5) of Article 100 has destroyed thestructural pillar of the Constitution as embodied in Article 94–Subarticle (5)has also brought itself within the mischief of Article 7(2).

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Part II[Fundamental Principles of State Policy]

Articles 8–25–

FundamentalPrinciples of State Policy cannot be judicially enforced despite the supremacyof the Constitution recognised by our Constitution. It is judiciary that has tosay the last word even in matters of propriety of legislation. The concept oflegislative supremacy imported from the soil of a developed country cannot betransplanted into the soil of a developing nation which has a nascent democracyas it is in Bangladesh.

Sheikh AbdusSabur vs Returning Officer 41 DLR (AD) 30.

Article 8–

Absolutetrust and faith in the Almighty Allah necessarily mean the duty to protect hiscreation and environment. The appellant is aggrieved, because Allah's creationsand environment are in mortal danger of extinction and degradation per MustafaKamal J delivering the Full Court Judgment.

Dr MohiuddinFarooque vs Bangladesh, represented by the Secretary, Ministry of Irrigation,Water Resources and Flood Control and others 49 DLR (AD) 1.

Articles 8 & 8 (IA)–

The MuslimFamily Laws Ordinance, 1961 when interpreted in the light of Articles 8 and8(1A) of the Constitution preserves iddat as laid down in the Holy Qur–an:(Mustafa Kamal J).

HefzurRahman (Md) vs ShamsunNahar Begum and another 51 DLR (AD)

Articles 8, 48, 56, 80, 92A and 142(1A) –

Preamble–Referendum–Whetherthe Preamble can be amended–Whether the Preamble is a part of the Constitution.Whether the Preamble is part of the Constitution or not as it has been the casein some other country. Article 142(1A) stipulates that a Bill for amendement ofthe Preamble and provisions of Articles 8, 48, 56, 80, 92A and Article 142 whenpassed in the Parliament and presented to the President for assent "thePresident shall within the period of seven days after the Bill is presented tohim, cause to be referred to a referendum the question whether the Bill shouldor should not be assented to". Hence the Preamble can only be amended byreferendum and therefore is a part of the Constitution.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Article 8(2)–

Although theseparation of judiciary was one of the fundamental principles of the Statepolicy of the Government that cannot be enforceable in a Court of Law.

M SaleemUllah vs Md Abdul Quddus Chowdhury & another 46 DLR 691.

Article 8(2)–

TheFundamental Principles of State Policy act as guide to the interpretation ofthe Constitution and other laws of Bangladesh in view of clause (2) of Article8 of the Constitution.

Aftab Uddin(Md) vs Bangladesh, represented by Secretary, Ministry of Establishment,Government of the People's Republic of Bangladesh and others 48 DLR 1.

Article 9–

FundamentalPrinciples of State Policy are not justiciable in court.

Parliamentis a creation of the Constitution itself; the local elective bodies are createdby their respective statutes in pursuance of Article 9 of the Constitution,which appears in Part II relating to Fundamental Principles of State Policy.These Principles, though they must be applied by the State in the making oflaw, are not justiciable in court. The main function of Parliament is lawmaking, that is, legislative, whereas the main functions of local bodies areexecutive in nature.

Sheikh AbdusSabur vs Returning Officer 41 DLR (AD) 30.

Article 9–

LocalGovernment Bodies have been created by a separate Act of Parliament inpursuance of Article 9 of the Constitution.

Sheikh AbdusSabur vs Returning Officer 41 DLR (ADJ 30.

Article 9–

Reading theword "Acting Chairman" within the meaning of clause"Chairman"–Whether permissible.

Since theLegislature themselves in plain language have used specific, well defined termsto qualify one definite person to be the representative member of the UpazilaParishad, presumably for upholding the democratic character of both the abovementioned local Government institutions, in accordance with the FundamentalPrinciples of State Policy, as has been envisaged in Article 9 of theConstitution of Bangladesh.

Monirul Huqvs Secretary, Local Govt & Rural Dev 41 DLR 108.

Article 9–

Promotion ofLocal Government institutions as provided in Article 9 of the Constitution isnot a mandatory provision–it is a direction on the State to encourage localgovernment institutions composed of representatives of the area concerned.There is no mandate that no local government institution can be abolished ifnecessary. The Ordinance repealing the Local Government (Upazila AdministrationRe–organisation) Ordinance, I 982 cannot be said to be inconsistent withArticle 9.

Ahsanullahvs Bangladesh 44 DLR 179.

Article 9–

Article 9 ofthe Constitution contains policy matter of the Republic for the attainment ofwhich endeavour shall have to be made by the State–The Court is to go by thelaw as it is.

MosharrafHossain (Md) (Babul) vs Bangladesh 56 DLR (AD) 113.

Articles 9 & 11–

FundamentalPrinciples of State Policy–Such principles, though fundamental to thegovernance of the country, are not judicially enforceable and the reason isobvious–They are in the nature of people's programme for socio–economicdevelopment in peaceful manner, not overnight, but gradually. Implementationsof these programmes require resources, technical know–how and many otherthings. Whether all these pre–requisites for a peaceful socio–economicrevolution exist is for the State to decide.

Kudrat–e–ElahiPanir vs Bangladesh 44 DLR (AD) 319.

Article 11–

Participationof people through elected representatives in the administration. Whether anOrdinance repealing an enactment providing for such participation is ultravires of the Constitution–Article 11 gives a direction to ensure participationof people through their elected representatives at all levels if there is anadministrative body. If the body itself is abolished and there is noadministrative body this Article is not applicable. It does not impose anymandate not to abolish anybody corporate if necessary by the legislature whichcreated it.

Ahsanullahvs Bangladesh 44 DLR 179.

Article 11–

Therehabilitation scheme must not be incompatible with prostitutes' dignity andworth of human person but designed to uplift personal morals and family lifeand provision for jobs giving them option to be rehabilitated or to be withtheir relations and providing facilities for better education, familyconnection and economic opportunities in order to minimise the conditions thatgave rise to prostitution.

BangladeshSociety for the Enforcement of Human Rights (BSEHR) and others vs Government ofBangladesh and others 53 DLR 1.

Articles 11 & 18–

In view ofthe Fundamental State Policy the respondents and the authorities performing thefunctions in connection with the affairs of the Republic must not continueadvertisement in any form of tobacco–related products beyond the period of theexisting contract with the manufacturers or their agents.

ProfessorNurul Islam and others vs Government of the People's Republic of Bangladesh& ors 52 DLR 413.

Articles 11, 31 & 32–

Prostitutesinitially get themselves enrolled with the local administration expressing thedesire to be prostitutes and get themselves confined to the brothels and getthe required protection to continue in profession by the local administrationwhereby they are maintaining their livelihood which the State in the absence ofany prohibitory legislation has a duty to protect and a citizen has the rightto enforce that right Article 11 providing for dignity of human person thoughnot enforceable but the sex–workers as citizens have enforceable right underArticles 31 and 32.

BangladeshSociety for the Enforcement of Human Rights (BSEHR) and others vs Government ofBangladesh and others 53 DLR 1

Articles 13, 27, 32 & 36–

The PassportOrder itself contemplates that reasons for revocation of a passport should bein writing and a copy thereof be supplied to the person concerned on demand orthe same may be refused in the interest of sovereignty, integrity or securityor in the public interest. The order of revocation of passport having beenpassed without a notice to show cause against any grounds for revocation is notin accordance with law and it violates the fundamental right guaranteed underArticles 15, 27, 32 and 36 of the Constitution.

Syed MokbalHossain vs Bangladesh 44 DLR 39.

Articles 14 &102–

Transparencyin the decision making as well as in the functioning of the public bodies isdesired and in the matter where financial interest of the State is involvedtransparency of the decision making authority is a recognised matter. Thejudicial power ofreview is exercised to rein in any unbridled executivefunctioning.

HyundaiCorporation vs Sumikin Bussan Corporation & others 54 DLR (AD) 88.

Article 21–

Abnormalsituation–Judges' duty–Two alternatives open to them, either to resign or tohold on to the post–Future of the Constitution lies in the commitment of thecitizens who are obliged under Article 21 to observe the Constitution.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

Articles 21, 31 & 32–

Both theConstitution of Bangladesh and the environmental laws enjoined the Governmentfunctionaries to take adequate measures to prevent environmental pollution.

Dr MohiuddinFarooque, (BELA) vs Bangladesh and others 55 DLR 69.

Articles 22 & 116A–

Article 116Ais a step to realise the principle enshrined in Article 22.

Aftab Uddin (Md) vs. Bangladesh, represented by Secretary,Ministry of Establishment, Government of the People's Republic of Bangladeshand others 48 DLR 1.

Article 25–

The decisionto send troops to Haiti has been taken rather on the principles enunciated inthe UN Charter which is in no way against the Fundamental Principles of StatePolicy of Bangladesh.

M SaleemUllah vs Bangladesh and another 47 DLR 218.

Article 25–

Petitioner'scontention on the facts of the case is misconceived. Rather the Government cantake help of Article 25 to extradite Annup Chetia to Indian authority in orderto base its international relations on the principle of 'respect for nationalsovereignty and equality, non–interference in the internal affairs of othercountries.'

Saiful IslamDilder vs Government of Bangladesh and others 50 DLR 318.

Article 25(1)–

Article25(1) of the Constitution casts an obligation upon the State to have respectfor International law and the principles enunciated in the United NationsCharter and the WHO resolution.

ProfessorNurul Islam and others vs Government of the People's Republic of Bangladesh& ors 52 DLR 413.

Constitution of Bangladesh Supreme Court Bar Association

Constitutionof Bangladesh Supreme Court Bar Association

Article 3 –

Thepurpose and object of the Bar Association are for giving facilities to itsmembers for conducting the profession. It is a welfare association. It cannotinterfere with the private conduct of a member.

Thepost of Minister or Vice President held by the petitioner had nothing to dowith his profession as a member of the Bar Association. The Association cannotimpose any restriction towards holding of such post. The Bar Council did not atall consider that the resolution directing the petitioner to tender resignationfrom a post which has no connection with the profession was not binding on thepetitioner and for non–compliance with the same his membership cannot beceased.

Moudud Ahmedvs Bangladesh Bar Council 46 DLR 71.

Article 4(5)–

The provision in this Article is voluntary.Any member may take advantage of this Article. Nowhere it is mentioned thatunless a member applies for associate membership, after he had taken uptemporarily another employment, Per Md. Abdur Rashid J (agreeing): Jurisdiction–This Division may suo moto or on the information received takes cognizance ofan offence of contempt. The jurisdiction is sui generis and consists of aspecial set of principles as stated in AIR 1954 (SC) 186 and PLD 1972 (SC) 39.

MainulHosein & others vs Sheikh Hasina Wazed 53 DLR 138.

Constitution of Pakistan, 1962

Constitutionof Pakistan, 1962

Article30(4) read with Article 131(2)–

Onthe outbreak of war between India and Pakistan on the 6th September, 1965 the Presidentof Pakistan proclaimed Emergency in the country and on that very day hepromulgated the Defence of Pakistan Ordinance (Ordinance No. XXIII of 1965) inexercise of his power under clause (4) of Article 30 read with clause (2) ofArticle 131 of the Constitution.

Sunil KumarGhosh vs State 39 DLR 377.

Contempt of Courts Act, 1926

Contempt ofCourts Act, 1926

[XII of1926]

Theapplication for contempt proceeding against the Prime Minister is disposed ofwith the observation that nothing can be more embarrassing if the ChiefExecutive chooses to speak to the press involving the Chief Justice–In decidingwhether the facts call for a contempt proceeding, the Appellate Division decidesto opt for discretion–The Court expects more circumspection, understanding,discretion and judgment on the part of the Prime Minister in making off–handremarks in respect of constitutional functionaries.

HabibulIslam Bhuiyan, President, Supreme Court Bar Association 51 DLR (AD) 68.

Advocatespracticing before any Court should be careful to conduct themselves in such amanner so as not to lower the Court in the estimation of others whichultimately lower themselves in the estimation of others.

State vsShahidul Alam Chowdhury and two others 51 DLR 380.

Applicationsfor drawing up proceedings of contempt of Court against Sheikh Hasina, thePrime Minister of Bangladesh, are disposed of with a note of desire that theHon'ble Prime Minister shall be more careful and respectful in making anystatement or comment with regard to the Judiciary or the judges or the Courtsof Bangladesh in future. Md Mozammal Hoque J.

MainulHosein & others vs Sheikh Hasina Wazed 53 DLR 138.

Per Md AbdurRashid J (agreeing) : In practice, this Division has been following the same pathcharted by the Appellate Division for taking cognisance of an offence ofcontempt.

Per Md AbdurRashid J (agreeing): A contempt proceeding is quasi–criminal in nature. The contemneris entitled to benefit of doubt, and since the Court is both prosecutor andjudge, rule as to proof of guilt of the contemner must be strictly observed.

MainulHosein & others vs Sheikh Hasina Wazed 53 DLR 138

Per Md AbdurRashid J (agreeing): What could readily be read as contemptuous in 1900 or 1912 or1936 is not so easily read now in the context of expanding rights guaranteed asfundamental to human existence under the Constitution.

MainulHosein & others vs Sheikh Hasina Wazed 53 DLR 138.

Per Md AbdurRashid J. (agreeing): Statements based oninaccurate assessments of situation, however grossly misreading those may be,cannot amount to contempt of court. Moreover, in the absence of mens rea, nocontempt is established.

MainulHosein & others vs Sheikh Hasina Wazed 53 DLR 138

Per Md AbdurRashid J. (agreeing): It is not correct to think that the judges are above law or thereis no accountability of the judges under the Constitution. The sooner it isunderstood the better for the whole nation.

MainulHosein & others vs Sheikh Hasina Wazed 53 DLR 138.

Per Md AbdurRashid J. (agreeing) : The Prime Minister of the Republic is the leader of the House ofthe Nation. The Parliament comprises of members, both of the ruling party aswell as of the opposition. The aggrieved members of the Parliament could havemore opportunities and better scope to hold their leader to account in theParliament for her statements. But they preferred to abdicate theirconstitutional privilege and submitted before the Court to punish their leaderby this Division for infraction of the Constitution. Such novel step,unprecedented in the constitutional history, I am afraid, would not create anygood precedent.

MainulHosein & others vs Sheikh Hasina Wazed 53 DLR 138.

Per Md AbdurRashid J. (agreeing) : The people are equally and strongly divided like the lawyers.Such division demands serious circumspection from the judiciary. Then thereason for such division is nowhere found except in the politics. The judiciarymust guard against all chances of the party politics creeping into the holyprecincts of the citadel of justice lest it ultimately fell victim to politics.

MainulHosein & others vs Sheikh Hasina Wazed 53 DLR 138.

Section 2 –

Appellantwas satisfied by obtaining a short order of stay and it is not clear as to whatis the sum total of the High Court Division's order of stay. No contemptproceeding can be drawn against the respondents.

CharandwipBKSS vs Deputy Commissioner, Cox's Bazar 40 DLR (AD) 213.

Section 2–

Failure toobey any process of the Court, when other methods of enforcing the process areavailable, does not amount to a contempt of Court.

Abu TaiyabMiah vs Nurun Nabi Miah 46 DLR 561.

Section 2–

As soon asthe executing Court comes to know of the stay order it will stay its hands tillfurther order. If it does not do so, it not only acts illegally but will alsobe liable for contempt of the Court that passed the order.

Chairman,Kushtia Co–operative Industrial Union Ltd vs Mujibur Rahman 44 DLR (AD) 219.

Section 2–

In a contemptmatter there cannot be both justification and apology.

Chairman,Kushtia Co–operative Industrial Union Ltd. vs Mujibur Rahman 44 DLR (AD) 219.

Section 2–

It is onlyin a clear case of contumacious conduct, not explainable otherwise, that thecontemner must be punished.

Chairman,Kushtia Co–operative Industrial Union Ltd vs Mujibur Rahman 44 DLR (AD) 219.

Section 2–

Contempt byjudicial officer– Unqualified apology– After considering the background of thecase and the power to punish a person for contempt in extreme necessity, onlyto keep the flow of administration smooth and undisturbed, Court does notaccept the apology but considers this as a mitigating factor and, instead ofsentencing him to imprisonment, the Court is inclined to take a lenient view inthe matter of sentence. The contemner Assistant Judge is accordingly let offwith an admonition only.

Ayub AliMohaldar vs Md Shahjahan 44 DLR 101.

Section 2–

Contempt byJudicial officer ignoring Advocate's certificate–A certificate issued by theconcerned Advocate informing the contemner Assistant Judge about the issuanceof the Rule and stay of the Execution Case by the High Court Division shouldhave been considered authentic enough. The conduct displayed by the contemnerAssistant Judge to ignore the Advocate's certificate and application for stayconstituted wilful disobedience of the Court's Order. The authority of theCourt has been undermined and the public confidence in the administration ofjustice shaken. This cannot be allowed and the contemner's ignorance of the lawis no excuse.

Ayub AliMohaldar vs Md Shahjahan 44 DLR 101.

Section 2–

Allegationof contempt by persons having no notice of the Court's rule– In a contemptmatter, a Court should not be touchy and no one should be held guilty ofcontempt of Court unless there is a wilful disrespect of a Court's order withknowledge of it.

Ayub AliMohaldar vs Md Shahjahan 44 DLR 101.

Section 2–

Contempt ofCommission of Inquiry–Jurisdiction–The Commission of Inquiry under theCommission of Inquiry Act 1956 cannot be regarded as the High Court Division ora subordinate court and as such the High Court Division has no jurisdiction totake cognisance of contempt of the Commission.

Dr. MdMahiuddin vs Dr. Hasanuzzaman 44 DLR 535.

Section 2–

Thecontemner being the Managing Director of Bangladesh Shipping Corporation andnow Comptroller General of Defence showed total disrespect to the judgment anddecree of the courts and did not offer any expression of sorrow, repentance,remorse or apology for his failure to act on the orders of the court. He isguilty of contempt of the courts and as such sentenced to one month'simprisonment and fine of Taka 1000.00.

RaquibuddinAhmed vs SAM Iqbal and another 50 DLR 209.

Section 2–

In a casewhere no execution case is filed, the contempt petition avoiding suchproceeding based on the ground of inaction on the part of the GovernmentOfficers and the defendant is misconceived.

Rafiqul Alamvs Secretary, Ministry of Works, Government of the People's Republic ofBangladesh and others 50 DLR 628.

Section 2–

Where thewriting contains scandalous language to bring the Court into disrespect andcastigates its dignity, its majesty and challenges its authority specially whenthe writer has knowledge about the contempt law and working of courts of law hecommits contempt of Court.

Judges ofthe High Court Division vs Ashok Kumar Kamaker and others 48 DLR 179.

Section 2–

Where thewritings published are proved to be that of the particular writer a lenientview may be taken in case of the Editor, the printer and the Publisher for suchnews item or the article.

Judges ofthe High Court Division bs Ashok Kumar Karmaker and others 48 DLR 179.

Section 2–

Aninexperienced young Deputy Commissioner became distraught with Courtproceedings and gave vent to his vengeful feelings by making objectionableremarks against judicial officers which he would not have done with a littlemore experience and guidance. The sentence imposed upon him for contempt ofCourt is set aside. He is however censured for objectionable remarks and warnedto be careful in future.

Abdul Haque(Md) Deputy Commissioner vs District Judgeship 51 DLR (AD) 15

Section 2–

This caseshould serve as a reminder to all concerned that the Court will not hesitate todeal with member of the subordinate judiciary if he is not cautious,restrained, respectful and deferential with regard to the highest judiciary.

Ashok KumarKarmaker vs State 51 DLR (AD) 235

Section 2–

The SessionsJudge had no authority to accept the apology tendered by the contemner.

AnwarulHoque (Md) vs Golam Mahmud and Md Hohsin 51 DLR 242.

Section 2–

If editors,printers and publishers publish news or comments even by anonymous author tomalign and scandalise this Court hands of this Court are long enough to catchand punish them.

ShahidulIslam vs Mahbubul Alam and others 51 DLR 485.

Section 2–

If anypresiding officer of any subordinate court fails to comply with any order ordirection of this court made in any case then such officer is not only guiltyof contempt of this court but also of insubordination.

State vsFarooq Ahmed, Subordinate Judge 51 DLR 515.

Section 2–

While thejudgment of the author– Judge was sub–Judice under appeal and the appeal wasbeing heard in this Division he ought not to have published any opinion on sucha subjudice matter.

ShamsuddinAhmed vs Md Gholam Rabbani & Others 52 DLR (AD) 81.

Section 2–

Contemner,having shown respect to this court and denied the allegations which issupported by the rejoinder published in the three newspapers, the contemner isnot guilty of contempt of this court but he is a victim of the situationcreated by the publication of news.

BangladeshSupreme Court Bar Association vs Shah Azizur Rahman, MP 52 DLR 159.

Section 2–

Contempt ofCourt proceeding is a quasi–criminal proceeding–In such a proceeding thepetitioner must prove beyond all reasonable doubt that the contemner hasdeliberately violated the Court's direction.

Suhel AhmedChowdhury vs Salahuddin Ayubi and others 54 DLR (AD) 82

Section 2–

The HighCourt Division meant it is the office of the Secretary which is responsible fornoncompliance of the directive but in contempt matters the personal liabilityis first and foremost consideration.

Suhel AhmedChowdhury vs Salahuddin Ayubi and others 54 DLR (AD) 82

Section 2–

By makingundue delay in carrying out the judgment of the courts oflaw the respondentsare committing contempt of courts.

WahidulHaque vs Bangladesh and others 54 DLR 165

Section 2–

Thecontemner taking advantage of not getting stay extended by the petitioner intime hurriedly took up the cases for hearing and passed order making ex parte theTrade· Mark Application pending before the Court infructuous – This action ofthe contemner appears to be contempt of this Court.

Elders Ltdvs Sunil Chandra Chowdhury and anr 54 DLR 226.

Section 2–

Any attemptto pollute the stream of justice before it has begun to flow or to interferewith its proper and unfettered administration will amount to a contempt.

Elders Ltdvs Sunil Chandra Chowdhury and anr 54 DLR 226.

Section 2–

Contemptproceeding is quasi–criminal and anybody can file an application forinitiating contempt proceeding if there be any ground.

Elders Ltdvs Sunil Chandra Chowdhury and anr 54 DLR 226

Section 2–

It is theeffect of the contemner's action which is to be taken into consideration indeciding whether a contempt is committed or riot.

Solaiman(Md) and others vs Md Mosharaf Hossain Khan and others 54 DLR 531

Section 2–

Apology withan attempt to justify the act complained of is no apology at all.

Solaiman(Md) and others vs Md Mosharaf Hossain Khan and others 54 DLR 531.

Section 2–

BankCompanies (Amendment) Act, 2003 introduced prospectively will have no bearingupon the AGMs for the years in question but ignoring this aspect the contemneropposite parties repeatedly hammered upon the Chairman designate to give hisopinion as to the interpretation of this new section and the circular of theBangladesh Bank. It appears in the name of seeking advice or guideline from theChairman designate the opposite parties have obstructed the course of justiceand flouted this court's order.

AkhteruzzamanChowdhury vs Hamidul Huq, MD, UCBL and another 56 DLR 73.

Section 2–

Contemptproceeding is a quasi–criminal proceeding and like any other criminalproceeding the contemners are also entitled to get the benefit of doubt.

AkhteruzzamanChowdhury vs Hamidul Huq, MD, UCBL & anr 56 DLR 73

Section 2–

In theaffidavit of explanation the case of the contemners is, that they have noauthority to hold the AGM of the Bank but I have already pointed out that theletter dated 27– 7–03 written by the contemner No. 2 to the Chairman designateMr KZ Alam, contemner No. 1, informed him that they have decided to wait tillthe disposal of the Writ Petition No. 3482 of2003 and this fact aloneestablishes beyond doubt that the contemners have no or any regard for thiscourt.

AkhteruzzamanChowdhury vs Hamidul Huq, MD, UCBL and another 56 DLR 73

Section 2(1)–

As theArbitrator is not a Court at all within the. meaning of the Code of CivilProcedure/there can be no question of his being subordinate to High CourtDivision. Hence no contempt proceedings can be drawn against the oppositeparties.

BegumLutfunnessa vs N Ahmed 40 DLR 23:/.

Section 3–

In theimpugned statement there is nothing relating to any judgment or to a personacting as a judge–it is over the activity of the Chief Election Commissioner,not of a judge–it is with no motive/o lower down the dignity of the SupremeCourt , and as such it constitutes no contempt.

Dr AhmedHussain, Senior Advocate vs Shamsul Huq Chowdhury Senior Advocate 48 DLR 155.

Section 3–

Adequateremedy having been provided against disobedience of an injunction order issuedunder Order XXXIX of the Code, as provided in Order XXXIX, rule 2, a contemptpetition is not maintainable on this score.

Momena Begumvs Dhaka City Corporation and others 55 DLR 43.

Section 3–

An apologyusually mitigates the offence and if it is unreserved, the court may accept it.

Sirajul Islam(Md) vs Wahidul Haque 55 DLR 272.

Contract Act, 1872

Contract Act,1872

[IX of 1872]

Section 2(c)–

When theland sold and the price quoted in the sale deed do not represent the land andprice as agreed in the agreement, the deed cannot be accepted in law asexecuted as part performance of the contract.

Saroj KantaSarker and others vs Seraj–ud–Dowla 56 DLR 39

Section 2(h)–

Earnestmoney to bind a contract must follow and not precede the same. If there is nomeeting of minds of the parties, consensus ad idem, there cannot be anyquestion of earnest money.

BangladeshMoktijoddah Kalyan Trust represented by the Managing Director vs Kamal TradingAgency and others 50 DLR (AD) 171.

Section 10–

Alterationin an agreement does not necessarily amount to forgery–if an alteration changesthe character of a document and alters the rights, liabilities and legalposition of the parties in that case only it can be said that such analteration is a material alteration which amounts to forgery and for suchforgery the document may be treated as void.

Mohiuddin Ahmedvs Lutfur Rahman 44 DLR 48.

Section 10–

A strangerto a contract cannot sue the other party. Terms of the contract can be enforcedonly by the contracting parties and not by third party.

Trang Jeeand Cold Storage Company Limited vs Amin Fish Farm 46 DLR 39.

Section 10–

Since it isa sale through tender notice, the contract for sale cannot be a concluded oneunless and until all the terms and conditions of the tender notice arefulfilled.

UnitedCommercial Bank Ltd vs Rahimafrooz Batteries Ltd and others 52 DLR 625.

Section 23–

Admittedlythe Government was not a party to the alleged contract and, as such, the samecould not be enforced against the Government whether it came to contest thesuit or not.

BangladeshRailway and others vs Pranab Kumur Chakraborty and others 50 DLR (AD) 150.

Section 23–

The suitland being the property of the Government the Railway Administration could notmake any contract with respect to the same.

BangladeshRailway and others vs Pranab Kumur Chakraborty and others 50 DLR (AD) 150.

Section 23–

If forwithdrawing and compromising a non–compoundable case an agreement is enteredinto between the parties then the same is against public policy and the bar ofsection 23 of the Contract Act is attracted.

Moti Mia vsAyesha Khatun and another 48 DLR (AD) 64.

Section 23–

By anoblique and indirect reference the object of the agreement cannot be broughtwithin the mischief of section 23 of the Contract Act.

Moti Mia vsAyesha Khatun and another 48 DLR (AD) 64.

Section 23–

Ifconsideration is for compromising a non–compoundable offence then it is hit bysection 23 of the Contract Act as opposed to public policy.

Moti Mia vsAyesha Khatun and another 48 DLR (AD) 64.

Section 23–

Contractentered into between estranged husband and wife giving the visiting right tothe plaintiff–husband by sending their minor son to him is, by no stretch ofimagination, void.

Irfan Sayed(Md) vs Mrs Rukshana Matin and others 48 DLR (AD) 134.

Section 24–

Minor'scontract– want of mutuality– An agreement which is void ab initio cannot bevalidated by ratification.

JulhashMollah (Md) and another vs Ramani Kanta Malo and another 47 DLR (AD) 35.

Section 25(3)–

Anunconditional promise in writing and signed by the party to pay on demand atime–barred debt though not a fresh transaction comes under Article 49 ofSchedule 1 of the Stamp Act and hence will require requisite stamp.

Daulat Ltdvs Pubali Bank 39 DLR 243.

Section 25(3)–

Anunconditional promise to pay a time–barred debt in writing duly signed does notcome under section 19 of Limitation Act, it being not made before theexpiration of the period of limitation–It directly comes under section 25(3) ofthe Contract Act.

Daulat Ltdvs Pubali Bank 39 DLR 243.

Section 25(3)–

All thatsection 25(3) does is the knitting of an independent contractual nexus betweenthe time barred creditor and the debtor as a corollary of which a fresh andindependent, not a re–charged, limitation period makes a maiden debut alongsidethe new contract.

Agrani Bankvs MA Kahhar 55 DLR 285

Section 25(3)–

Promiseconnotes accepted offer–When sub–section (3) speaks of a "promise,"it necessarily connotes an accepted offer, not a strayed promise.

Agrani Bankvs MA Kahhar 55 DLR 285

Section 28–

It is quiteclear that cause of action to recover the loss finally accrues only when thearbitrator, arbitrators or umpire have finally settled the award as to thequantum of loss or damage, but not before that. This principle of common lawhas now found statutory recognition in section 28 of the Contract Act. So,condition No. 18 of the policies has the full backing of explanation (1) ofsection 28 of the Contract Act. It would be a clear violation of the law ofcontract and terms and conditions of the policy to saddle the insurers with theliability to pay the loss though they never acknowledged the liability and hada right to postpone a decision on liability until arbitrator had fixed theamount of loss or damage.

DaulatpurTraders & Co Ltd vs Eastern Federal Union Insurance Co Ltd 42 DLR 125.

Section 28–

Limitation–Waiver–Specialperiod of limitation referred to in insurance policy agreement will not be hitby section 28 of the Contract Act inasmuch as this limitation was created byconsent of parties and that will amount to waiver of the right given underLimitation Act.

SadharanBima Corporation vs Sanjib Kumar Das 46 DLR 566.

Section 28–

Forfeitureof insurance claim– The arbitration agreement contained in the insurancepolicy in question provided that if a claim be made and rejected and an actionbe not commenced within 3 months after such rejection all benefits under thepolicy shall be forfeited. The Insurance company having informed the plaintiffthat their claims under the policy were not payable and as such rejected thesame as per condition No.13 of the policy and the plaintiff having notcommenced any action within 3 months, have forfeited all their rights under thepolicy.

SadharanBima Corporation vs Dhaka Dyeing and Manufacturing Co. Ltd 43 DLR 286.

Section 28–

Undersection 28 of the Contract Act, save as otherwise provided in the contractin0self, the liability of the surety is coextensive with that of the principaldebtor. In fact, the liability of the guarantor of surety is immediate and thisneed not be deferred until creditor exhausts his remedies against the principaldebtor.

IFIC BankLtd vs Chittagong Steel Mills Limited and another 55 DLR 417

Section 28 Exception I –

There isnothing in Exception 1 to section 28 of the Contract Act prohibiting theparties to a contract from choosing a foreign forum under the supervision of aforeign court for arbitrating its disputes. Such contract does not offend themain provision of section 28, because the local Courts still retain thejurisdiction to decide the /is between the parties.

BangladeshAir Service (Pvt) Ltd vs British Airways BLC 49 DLR (AD) 187.

Section 28 Exception I–

The plea ofsovereignty and interest of the country and its citizens, if accepted, willrender foreign arbitral jurisdiction absolutely nugatory.

BangladeshAir Service (Pvt) Ltd vs British Airways BLC 49 DLR (AD) 187.

Section 30–

Speculativedamage can be treated as remote damage for which a court cannot pass anydecree.

Trang Iceand Cold Storage Company Ltd vs Amin Fish Farm 46 DLR 39

Sections 42 & 45–

When aperson or two or more persons made a joint promise to two or more persons theyare jointly liable for the performance of the same and the right to claimperformance rests as between him and them during their lifetime and if any ofthem died their representative must be brought on record to enable them toperform the contract. Admittedly defendant Nos. 2 to 4 and 6, partners of firm,died during pendency of the suit and no step was taken for their substitution.Therefore, the suit must fail as it cannot proceed against dead persons.

Pubali BankLtd vs Sultana Oil Mills and Soap Factory and others 51 DLR 323

Section 46–

Since therewas no laches on the part of the respondent in the materialisation of thecontract the Court has committed no error in making the direction for thepayment upon making declaration that the contract contained in the letter ofintent with the respondent issued by the petitioner has been breached.

PrivatisationBoard vs AK Fazlul Huq 55 DLR (AD) 11

Section 55–

Where in adeed of agreement no time is mentioned for registration of sale deed and theplaintiff is already put in possession of the suit land in pursuance of theagreement duly executed by the defendant upon receipt of the bulk of theconsideration money, time is not an essence of the contract. It is true that acontract implies two parties, but a contract, in writing in this country doesnot necessarily imply that the document must be signed by both the partiesthereto.

Abdul SamadGazi vs Abdul Khalil Gazi and others 53 DLR 262

Section 56–

To attractthe doctrine of frustration of contract the performance of the contract mustbecome absolutely impossible due to the happening of some unforeseen event.

MokbulHossain Khondker vs Jaheda Khatoon 47 DLR 430.

Section 62–

When theparties to a contract agree on substituting a new contract for it, it is knownas novatio or novation.

Abul HashemKhan vs Md Shamsuddin Khan 41 DLR 415.

Section 62–

Specificperformance of contract– The plaintiffs not having disclosed the material factssuch as time, place and names of witnesses are guilty of laches.

Abul HashemKhan vs Md Shamsuddin Khan 41 DLR 415.

Section 62–

Substitutionof a new contract for the original contract, such as the reconstitution of thefirm between the defendant Nos.1 and 2, is not a novation within the meaning ofsection 62 of the Contract Act.

Abul HashemKhan vs Md Shamsuddin Khan 41 DLR 415.

Section 62–

Once abank's borrower has become a defaulter, his stigma cannot be removed by invokingthe provision of section 62 which only contemplates novation of contract ormodification of the term of contract. It has little to do as to the elevationof the status of person who has already defaulted in making payment of any duesto the bank.

Abdul MomenBhuiyan vs Hazi Payer Ali Mia 43 DLR 97.

Section 70–

When a thingis done or delivered by one person it must be open to the other person toreject it. The acceptance and enjoyment of the benefit of the work done or thegoods delivered which is the basis for the claim for compensation under section70 must be voluntary.

AKM ShahidulHoque vs Deputy Commissioner and others 56 DLR 538.

Section 73–

Ashare–holder in a company cannot sue the company for wrong or damage or for anyloss suffered by the company. If any wrong is done or damage is done to acompany, the company is the only person who can claim for damages against theperson who has caused such damages.

Trang Iceand Cold Storage Company Ltd vs Amin Fish Farm 46 DLR 39.

Section 73–

In an appropriatecase a Court of Law can apply and imply warranty, as distinguished from anexpress contract or express warranty, on the presumed intention of the partiesand upon reason.

HutchisonTelecom Bangladesh Ltd vs Bangladesh Telegraph and Telephone Board and others48 DLR (AD) 30.

Section 73–

When thereare materials for ascertaining damages the trial Court illegally refused toaward damages in terms of the agreement for selling medicine and earn profits.

Islami BankBangladesh Ltd vs Shohag Medicine Supply and others 52 DLR 571.

Sections 73 & 124 –

The remedyunder these provisions of the Contract Act lies in the Civil Court, if at all,not under the Admiralty Jurisdiction on a Marine Hull Policy.

SadharanBima Corporation vs Bengal Liner Ltd and another 48 DLR (AD) 143.

Section 74–

Since theagreement between the parties for sale of the suit property was enforceable inlaw and the term of the agreement for depositing 25% of the total considerationmoney was violated, the defendant legally forfeited the earnest money given bythe tenderer.

James FialayPLC vs Meshbahuddin Ahmed 46 DLR 624.

Section 92(b)–

Anacceptance must be expressed in some usual and reasonable manner, unless theproposal prescribes the manner in which it is to be accepted.

BangladeshMoktijoddah Kalyan Trust represented by the Managing Director vs Kamal TradingAgency and others 50 DLR (AD) 171.

Section 128–

Guarantor'sor Surety's liability– The liability of the principal debtor is co–extensivewith that of the guarantor. A creditor is at liberty to pursue either theprincipal debtor or the guarantor according to his sweet will for realisationof his dues or he can proceed against both of them simultaneously.

Sonali Bankvs Hare Krishna Das and others 49 DLR 282.

Sections 151, 152 and 161–

PortAuthority is not liable for any loss in this case as they informed the owner ofgoods to locate the same.

In this caseas the owner of the drums did not remove the same from the Jetty premises,without any fault on the part of the Jetty Administration, within clear 7working days from the time of landing of the drums in question the JettyAdministration is not liable for any loss as in this case the Port Authorityinformed the owners of the drums to find out the same and there was no fault onthe part of the Port Authority to locate the goods.

ChittagongPort Authority vs Hong Kong Shipping Lines 41 DLR 332.

Sections 151, 152 and 161–

ChittagongPort Authority acts as a bailee so long the goods remain in their possession.Section 50A of the Port Act will not operate if the necessary procedure is notfollowed.

It is truethat under section 50A of the Chittagong Port Act the Port Authority isresponsible for the loss of goods landed and remained in its possession orcontrol as a bailee in view of the provisions of sections 151, 152 and 161 ofthe Contract Act, 1872. But section 50A will not operate in a case where thegoods landed under nil mark and the consignee fails to follow the nil markprocedure to locate the goods by reason of sub-rules (f) and (g) of Rule 64,of General Rules and the Schedules for Working of the Chittagong Port (Railway)Jetties.

ChittagongPort Authority vs Hong Kong Shipping Lines 41 DLR 332.

Sections 151, 152 & 161–

The Railwaycarries a goods delivered to it as a bailee and is bound to take such care ofthe goods as that of a man of ordinary prudence. It is only when it wants tolimit its liability that it can enter into special contract with the partiesconcerned.

It appearsfrom the records that the booking clerk, one Mr Ismail Howlader, was in theemployment of the appellant and while discharging his official duties in thecapacity of booking clerk delivered the goods in question to a third party. Inview of the facts, circumstance, evidence and decision referred to above we areof the opinion that the defendant–appellant is absolutely liable for the actdone by the booking clerk under his employment.

Chairman RlyBoard vs Commerce Bank Ltd 46 DLR 254 .

Section 170–

Theplaintiff did not make out any case under section 170 of the Act to retain thegoods as a bailee.

In this casethe plaintiff could have exercised his right under section 170 of the ContractAct if he had possession over the scheduled materials. The High CourtDivision's finding on the basis of the documents on record and the evidenceadduced in the matter that the Bank had although been in possession of theattached goods does not suffer from any infirmity. In fact, the plaintiff didnot make out any case that he was entitled under section 170 of the ContractAct to retain the scraps as a bailee till he received due remuneration for theservices rendered by him. In the application for attachment; the plaintiff didnot mention the word 'lien' nor did he do so in his written objection to theapplication for vacating that order.

MuhammadMeah vs Pubali Bank 41 DLR (AD) 14.

Section 170 –

(Minorityview) Per BH Chowdhury– Section 170 says lien exists in the absence of acontract to the contrary. This question has agitated the minds of the EnglishJudges and the law was surveyed in Tappenden vs Antus (1964) 2 QBD 185=1963 AllER 213.

Muhammad Meahvs Pubali Bank 41 DLR (AD) 14.

Section 170–

Lien cannotbe a ground for action, it can be taken as defence. Lien cannot be a ground foraction, it can be taken as defence. Prcisely that was done here inMiscellaneous Judicial Case No.1 which was brought to the Bank . Here theplaintiff can raise the point of lien in the face of the application forreleasing the attached properties. And that has happened in this case.

Muhammad Meahvs Pubali Bank 41 DLR (AD) 14.

Section 170–

Undersection 170 of the Contract Act a ship breaker can retain goods for hisremuneration. (Minority view) The bank granted the loan for buying the ship andthe ship is to be scrapped and the scrap is to be sold in the market and thesale proceeds is to be deposited into cash credit account for liquidating thedebt. Unless the ship is broken how the debt is to be liquidated? Therefore,the question comes what about the remuneration of the ship breaker and the lawsays in section 170 of the Contract Act that he can retain such goods.

Muhammad Meahvs Pubali Bank 41 DLR (AD) 14.

Section 170 –

(MinorityJudgment) Per BH Chowdhury J–Execution of decree when all the properties aremortgaged to the Bank–Application of section 170 of the ContractAct–Plaintiffs claim on lien–Remuneration of the breaker – Omission to mentionthe word "lien" by the plaintiff–Effect of–Rule of pleading does notwarrant it.

The crux ofthe problem as to how he could execute the decree when all the properties ofJanapad Enterprise are mortgaged to the Bank. The only available property wasthe scheduled property which was valued for only eight lac. The question was,whether the plaintiff could retain this property. Plaintiffs claim for hisremuneration is grounded on lien and section 170 says that he has a right toretain such goods until he receives due remuneration for the services in theabsence of the contract to the contrary. ls there any contract to the contraryin this case between the Bank and the borrower that the remuneration of thebreaker must not be given out of the sale proceeds of the ships? The answer isin the negative. If so, then why the ship breaker will be deprived of hisremuneration. It was contended by the learned Counsel appearing for therespondent that in the application for attachment the plaintiff did not mentionthe word 'lien' nor did he do so in his written objection to the applicationfiled by the Bank for vacating that order. To say the least rule of pleadingdoes not warrant it.

Muhammad Meahvs Pubali Bank 41 DLR (AD) 14.

Section 171–

Claim andcounter–claim between the petitioner and the Agrani Bank– Petitioner(appellant) claimed a sum of Taka 75,55,020.28 paisa after adjustment in thesuitTrial Court allowed prayer for mandatory injunction–Appellant contendedthat the import passbook issued by the CCIE could not be a security for thepurpose of Banker's general lien within the meaning of section 171 of theContract Act–High Court Division issued order directing the petitioner tofurnish security to the extent of the claim of the bank whereupon the defendantBank is to return the import passbook either to the CCIE or to the nominatedbank of the petitioner and set aside the order of mandatory injunction.

Held: The Court will not decide a point, especially in theinterlocutory matter which will not advance the cause of justice. It willmerely delay the process of coming to a conclusion as to claim andcounter–claim which can only be thrashed out in the pending suit.

The DhakaDyeing and Manufacturing Co vs Agrani Bank 42 DLR(AD) 60,

Section 171 –

In thepresent case concerning adjustment of loan by share certificates, theprovisions of Banking Companies Ordinance shall be read and construed inaddition to section 171 of the ContractAct. From the provision of the Sale ofGoods Act it appears that the shares of a company are also goods and as suchmoveable property. Money is a species of goods over which lien may beexercised. Where a banker has advanced money to another, he has a lien on allsecurities which come within his hand for the amount of his general balanceunless there is an express contract to the contrary.

Sonali Bankvs Bengal Liner Ltd 42 DLR 487.

Section 171–

Banker'sright of lien– Whether a bank can retain depositor's money in exercise of itsright of general lien– Depositor's money with the bank is not in the nature ofany goods bailed to the bank–Money deposited by the plaintiff in his accountcannot be retained by the bank for the simple reason that by the said deposit arelationship of debtor and creditor is established between the bank and itscustomer and the bank can use the money in any manner it likes as the ownershipin such deposit vests in the bank and there is no question of exercising lienon the money over which the bank has absolute right of ownership andpossession–The bank could not withhold the money deposited by the plaintiffwith the defendant No. I in exercise of its right of general lien.

Rupali Bankvs Haji Ahmed Sabur 43 DLR 464.

Section 172–

Inhypothecation, the borrower has got actual physical possession of the goods asan agent, as it were, of the bank.

Eastern BankLtd and another vs Sufia Re–Rolling Mills and Steel Ltd and others 56 DLR 530

Section 176–

For realisationof payment of debt or pawn there is no bar to institute a proper suit by thepawnee and at the same time to retain the pledged goods, if any, in his custodyas a collateral security. But the two reliefs, though concurrent, are yetalternative and both cannot be resorted to at a time.

Bengal MetroEngineering Co. vs Agrani Bank 46 DLR 168.

Section 176–

Law relatingto the right of the pawnee does not require him to sell the pawned goods firstand thereafter, if any amount remains due from the pawnor then to file the suitfor the realisation thereof.

Islami BankBangladesh Ltd vs Sub–Judge and Additional Artha Rin Adalat and others 55 DLR(AD) 121

Sections 176 & 177–

Where thepawnee is not in possession of the property pledged to him as security for thepayment of the loan nor did he prove that it had been damaged or destroyed atthe risk of the defendant (pawnee) the pawnee is not entitled to recover thedebt because the pawnor had the right conferred by section 177 to redeem hisproperty at any time before the actual sale prior to filing of the suit.

Pubali BankLtd vs Sultana Oil Mills and Soap Factory and others 51 DLR.323

Section 201–

On demise ofeither party to the power of attorney the relationship between the principaland the attorney ceases.

Abdur Rahman(Md) vs Md Iqbal Ahmed and others 49 DLR (AD) 142.

Sections 202 and 203–

A power ofattorney becomes irrevocable when if the power were revoked the attorney wouldbe deprived of a substantial right.

BegumShamsunnahar Chowdhury vs Md Masud Jamal and others 48 DLR 267.

Section 217–

Under thelaw of agency the agent is paid by his principal only. An agent owes hiscontractual duty to his principal only and the agent will be in a situation ofconflict of interest and dishonesty if he receives any remuneration from thethird party.

SM FazlulHaque vs Salahuddin Ahmed and another 54 DLR 612

Section 226–

No questionof agent's liability to a third party for any breach can arise. Generalprinciple dictates that the contract is the contract of the principal, not thatof the agent, and prima facie in law the only person who can be sued is theprincipal.

SM FazlulHaque vs Salahuddin Ahmed and another 54 DLR 612.

Section 238–

It could notbe said that the then manger of the Bank received the cheques in course of hisemployment under the Bank but it seems that he was carrying on a parallelbusiness–one as the agent of the Bank and the other as the agent of theplaintiff.

Sonali Bankvs MA Hakim 39 DLR 367.

Convention for Avoidance of Double Taxation between United Kingdom and Bangladesh

Conventionfor Avoidance of Double Taxation between United Kingdom and Bangladesh

Article 5–

'Permanentestablishment' means a fixed place of business in which the business of theenterprise is wholly or partly carried on.

Dhamai TeaCompany Limited care of James Finlay PLC vs Commissioner of Taxes, Chittagong(South) Zone, Chittagong 47 DLR 178.

Co–operative Societies Ordinance, 1984

Co–operativeSocieties Ordinance, 1984

[I of 1985]

Section 2–

When reportof enquiry forms the basis of allegations against the Managing Committee a copyof the Report is an indispensable tool in its hands in giving reply to the showcause notice.

Borhanuzzamanvs Ataur Rahman Chowdhury 46 DLR (AD) 94.

Section 22(4)–

Governmentmay dissolve any co–operative society but they cannot direct a person to act asChairman of a society during an enquiry.

Karika vsSecretary, LGRD 45 DLR 324.

Section 26–

Enquiryunder section 26–No manner laid down–Govemment's discretion to prevail.

In thepresent case section 26 of the Ordinance does not lay down any manner. ofcausing an enquiry. The enquiry has been left to the discretion of theGovernment "as it may deem fit."

Saleh AhmedKhan vs Additional Secretary, Ministry of Local Government 41 DLR 210.

Section 26–

Exercise ofpowers by the Additional Secretary–in–Charge is contingent upon his beingauthorised by the Rules of Business or by the President's direction.

We are inrespectful agreement with the aforesaid observations of the Division Bench (40DLR 353) and we also similarly hold that in the present case the AdditionalSecretary–in–Charge can exercise the powers of the Government under section 26of the Ordinance only if he is so authorised in the Rules of Business or onlyifhe is so directed by the President.

Saleh AhmedKhan vs Additional Secretary, Ministry of Local Government 41 DLR 210.

Section 26–

Impugnedshow cause notice or order of disqualification–No power has been vested in theAdditional Secretary–in–Charge under section 26 of the Ordinance (1 of 1985) assuch.

We have nohesitation in saying that no power has been vested in the Additional Secretary–in–Chargeunder section 26 of the Ordinance and he himself had no power to issue eitherthe show cause notice or the impugned order of disqualification. The entireproceeding was without jurisdiction.

Saleh AhmedKhan vs Additional Secretary, Ministry of Local Government 41 DLR 210.

Section 26 –

Removal ofdelinquent member from the membership of the Managing Committee is thesubstantive punishment. Disqualification does not follow if he is not soremoved.

It appearsto us that the Government after finding the reply to the show cause noticeunsatisfactory has first of all to remove the delinquent member from themembership of the Managing Committee. That is his substantive punishment. It isonly upon the imposition of such punishment that he ceases to be a member ofthe Managing Committee and also suffers the aforesaid disqualification. But ifthere is no order removing him from the membership of the Managing Committeethen the disqualification does not follow.

Saleh AhmedKhan vs Additional Secretary, Ministry of Local Government 41 DLR 210.

Section 86–

This sectiondoes not in any way confer any power upon the Registrar to decide any matterrelating to election.

SyedRahmatun Rub lrtiza Ahsan vs Bangladesh 46 DLR 294.

Sections 86 & 87–

Any disputetouching the business or affairs of a co–operative society is to be resolved ina manner as laid down in the provisions of the Ordinance and the Rules. In theabsence of any application by any party to the arbitration for the disputebeing withdrawn, the withdrawal of the dispute on the direction from theconcerned ministry is illegal.

Abdul Malekvs District Co–operative Officer, Cox's Bazar and others 50 DLR 426.

Sections 86, 89–

Anarbitrator appointed under the provision of the Co–operative Societies Ordinance,and Rules has no express power to grant any order of stay or injunction. Sucharbitrator has no inherent, implied, incidental or consequential power to passorder of stay during pendency of an arbitration case before him.

Giasuddin(Md) vs Secretary–in–charge, Eastern Co–operative Jute Society Limitedand–others 50 DLR 15.

Sections 86, 89 & 133–

The disputein the case is one between the members of the society in respect of the holdingof a meeting and or cooption of some members in the managing committee. Allthis matter concerns the internal affairs of the co–operative society. Thepresent dispute fulfils both the requirements of a dispute as contemplated bysection 86 of the Ordinance. The dispute thus falls within the mischief ofsection 133 which has barred the jurisdiction of a civil Court to entertain anysuit in respect of such a dispute.

ChittagongUrban Co–operative Society Limited and others vs Subash Chandra Lala, Advocateand others 47 DLR 261.

Co–operative Societies Rules, 1987

Co–operativeSocieties Rules, 1987

Rule 37–

ManagingCommittee of the Cooperative is the appointing authority of its employees.

Bangladeshvs Md Alauddin 38 DLR (AD) 81.

Rules128–138

Anarbitrator appointed under the provision of the Co–operative SocietiesOrdinance, and Rules has no express power to grant any order of stay orinjunction. Such arbitrator has no inherent, implied, incidental orconsequential power to pass order of stay during pendency of an arbitrationcase before him.

Giasuddin(Md) vs Secretary–in–charge, Eastern Co–operative Jute Society Limited andothers 50 DLR 15.

Rules 133,134 & 135–

Anydispute touching the business or affairs of a co–operative society is to beresolved in a manner as laid down in the provisions of the Ordinance and theRules. In the absence of any application by any party to the arbitration forthe dispute being withdrawn, the withdrawal of the dispute on the directionfrom the concerned ministry is illegal.

Abdul Malekvs District Co–operative Officer, Cox's Bazar and others 50 DLR 426.

Copyright Ordinance,1962

[XXXV of1962]

Sections 2 & 13(c)–

Whether aperson is under a contract of service or contract for service is a question offact and not a question of law and is to be determined on consideration of thefacts and circumstances of each case.

Suraiya Rahman vs. Skill Development for Underprivileged Womenrepresented by its Project Director and others 49 DLR 222.

Section 13–

The authorof a work shall be the first owner of the copyright in the work subject to sameconditions, one of which is that a work made in the course of author'semployment under a contract of service or apprenticeship when none of the otherconditions applies, the employer of the employed person shall, in the absenceof any agreement to the contrary, be the first owner of the copyright therein.

Suraiya Rahman vs Skill Development for Underprivileged Womenrepresented by its Project Director and others 49 DLR 222.

Counting of Ad–hoc Service (Determination of Seniority) Rules, 1990

Counting ofAd–hoc Service (Determination of Seniority) Rules, 1990

Rule 4(2) (gha)–

A BMohiuddin Ahmed Executive Engineer vs Bangladesh and others 49 DLR 353.

Court–Fees Act, 1870

Court–FeesAct, 1870

[VII of1870]

Section 6(2) –

An appellateCourt is perfectly within its power to direct the appellant to pay deficitcourt fees within the time fixed by it and in default to reject the appeal.

DistrictPrimary Education Officer vs Jaynal Abedin 40 DLR 328.

Section 6(2) –

Theenlargement of time contemplated under section 148 of the Code of CivilProcedure and under section 6(2) of the Court–fees Act has no application inthe instant case where the statute fixed the period of time which a court cangive for compliance, imposing a positive bar against granting time exceeding 21days as provided under rule 11 Order VII of the Code.

Abdul Azizvs Tafazzal Hossain and another 50 DLR 487.

Section 7(iii)–

Suit beingfor movable property having a market value governed by section 7(iii)–Ad valoremcourt fee payable.

Nowab AskariJute Mulls Ltd vs Giasuddin Ahmed 41 DLR 144.

Sections 7(iii) and 7(IV)(d)–

It was not asuit for simple injunction as provided in section 7(IV) (d) of the Court–feesAct nor for movable property having no market value as provided in theenumeration under section 7(1V) but a suit for recovery of a launch which has amarket value.

Nawab AskariJute Mills Ltd vs Giasuddin Ahmed 41 DLR 144.

Section 7(IV)–

Valuation ofsuit by plaintiff– Court should look to the framing of the suit to find itssubstance, its real nature.

Nawab AskariJute Mills Ltd vs Giasuddin Ahmed 41 DLR 144.

Section 7(IV)(C)–

Ad–valoremfees to be paid for cancellation of a document.

Sufia Khanomvs Faizun Nessa 39 DLR (AD) 46.

Sections 7(1V)(C) and 8C–

In a suitfor declaration of title to property and perpetual injunction where the reliefsclaimed are substantial according to the construction of the plaint by theCourt, payment of Court fees will be made according to the valuation asdetermined by the Court–plaintiff's own valuation will not be acceptable.

KhalkurRahaman vs Syed Asan Ali 40 DLR 292.

Section 7(1V)(C) & (Vl–A)–

In a suitfor partition and recovery of possession the plaintiff is to pay ad valorem court–feeon the value of his share property but prays for declaration of his title andpartition then also he is to pay ad valorem Court fee on the value of his shareof the suit as partition in such a suit is a consequential relief to the prayerfor declaration of title in his share of the suit property as in the presentsuit.

Mahamudul Hoqueand 5 others vs Nowab Ali Chowdhury and 18 others 49 DLR 92.

Section 71V(C) and (VI–A)–

A simplesuit for partition is to be filed with a fixed court–fee when the plaintiffasserts that he is in possession of the property. But when a suit is filed forpartition and for recovery of possession then he is required to pay ad valorem court–feeon a value of his share of the suit property. Even if the plaintiff claims tobe in possession of his share of the suit property but he prays for declarationof his title and partition then also he is required to pay ad valorem court–feeon the: value of his share of the suit property.

Mahmudul Huqand others vs Nowab Ali Chowdhury and others 49 DLR 405.

Sections 7(XI), 8C & 8D–

Section7(Xl) of the Court–fees Act provides an objective standard for valuation of asuit for eviction of a monthly tenant by the landlord. In such a case, thesubjective satisfaction of the plaintiff is of no avail.

Didar Aliand others vs Naziur Rahman 50 DLR 451.

Section 8(b)–

In a suitfor declaration of title and confirmation of possession the plaintiff is boundto pay ad valorem Court–fee.

Sufia AkhtarKhanam vs Salema Akhtar Khanam 46 DLR 198.

Section 8(c)–

Determinationof valuation of the suit–The court is to hold an enquiry and determine thevaluation where there is objective standard of valuation of the suit. Theobjective standard of valuation is the consideration money of the kabala or themarket price. There is no embargo on the enquiry to be made on the valuation inthe absence of written statement in a suit where objection has been raisedregarding the valuation and where objective standard for valuation isavailable. The enquiry is to be made after giving sufficient opportunity to theconcerned parties.

Ahmed Kabirvs Haji Mazahar Ahmed 43 DLR 500.

Section 8C–

Duty of theCourt to hold inquiry to determine correct valuation where objective standardof valuation is available.

Nawab AskariJute Mills Ltd vs Giasuddin Ahmed 41 DLR 144.

Section 8C–

Deciding apreliminary issue on valuation–in the present case the objective standard ofvaluation being available and the question of jurisdiction being involved, themunsif committed an error of law in not deciding the question of valuation andin putting off the matter to be decided with other issues.

Shaukat Hossainvs Abdul Hakim 42 DLR 508.

Section 8C–

Valuation ofsuit– Issue regarding valuation–Acceptance of valuation given by theplaintiff–Whether Court is bound to hold enquiry to revise the valuation givenby the plaintiff while deciding issue regarding valuation when the trial of thesuit already commenced without any evidence merely relying on the valuation inthe sale deeds filed. The Court is not bound to hold enquiry regardingvaluation on the mere seeking of the defendants and the Court in its discretionmay accept the valuation given by the plaintiff in the plaint if the sameappears to be reasonable to the Court. In a summary enquiry regarding valuationunless the Court finds that the valuation given by the plaintiff is grosslyundervalued the Court in its discretion does not interfere.

Abul (Md)Kashem vs Ashrafuzzaman 43 DLR 596.

Section 8C –

Thedefendants at the earliest opportunity raised the question of undervaluation ofthe suit and, as such, a specific issue to that effect ought to have beenframed.

Abdus Samadand others vs Md Gafur and others 56 DLR 297.

Section 19 –

No order forprobate or letters of administration can be granted unless a valuation of theproperty is given as set forth in the 3rd Schedule of the Act. The applicationthat is filed in a probate proceeding is in the nature of a Miscellaneousjudicial proceeding and Taka 10 is required as Court–fees in Memo of Appeal.

GolakChandra Roy vs Niva Guha Roy 40 DLR 382.

Section 35A–

Section 35Aremains operative and its provision is not inconsistent with Schedule 1 of1981.

Sonali Bankvs Abdur Rashid 39 DLR (AD) 207.

Section 35A–

Is itpossible to hold that the Legislature was not aware of section 35A whileamending the Schedule? According to rules of construction, it must be presumedthat the Legislature is in full knowledge of all existing statutes on thesubject when it makes or repeals any law.

Sonali Bankvs Abdur Rashid 39 DLR (AD) 207.

Section 35A–

An impliedrepeal will be held only when two statutes cannot stand together.

Sonali Bankvs Abdur Rashid 39 DLR (AD) 207.

Section 35A–

Reference toSchedule l of 1960 in section 35A must be construed as reference to Schedule 1of 1981.

Sonali Bankvs Abdur Rashid 39 DLR (AD) 207.

Section 35A–

Thecontention that there is prohibition as to levy of court–fee beyond Taka 15,000is not acceptable to the court.

Sonali Bankvs Abdur Rashid 39 DLR (AD) 207.

Article 11 of Schedule 1–

Rule 773 ofCivil Rules and Orders speaks that application for revocation of probate andletters of administration should be treated in the same manner as anapplication for probate or letters of administration.

GolakChandra Roy vs Neva Rani Guha Roy 40 DLR 382.

Article 17 (VA) of Schedule II–

A simplesuit for partition is to be filed with a fixed court fee when the plaintiffasserts that he is in possession of the property. But when a suit is filed forpartition and for recovery of possession then he is required to pay ad–valoremcourt–fee on a value of his share of the suit property. Even if the plaintiffclaims to be in possession of his share of the suit property but he prays fordeclaration of his title and partition then also he is required to pay advalorem court–fee on the value of his share of the suit property.

Mahmudul Huqand others vs. Nowab Ali Chowdhury and others 49 DLR 405.

Courts of Admiralty Act, 1891

Courts ofAdmiralty Act, 1891

Section 6–

TheAdmiralty Judge, in allowing the vessel to leave the territorial waters ofBangladesh without payment of her dues payable to the Chittagong PortAuthority, travelled beyond his jurisdiction.

ChairmanChittagong Port Authority & another vs Ministry of Defence and others 49DLR (AD) 152.

Customs Act, 1969

Customs Act,1969

[IV of 1969]

Sections 2(5), 156(1)(8) & 157(1)(2)–

It is asettled principle that to bring the charge of smuggling under section 156(1)(8) of the Customs Act the authority must show that the items were prohibiteditems in Bangladesh.

Amara Holding Inc. represented by Mariners (Bangladesh) Ltd vsBangladesh, represented by the Secretary (IRD) and Chairman, NBR, Ministry ofFinance and others 51 DLR 211.

Sections 4 & 13–

By the useof the word "may" in the section it is clear that the legislature hasconferred upon the Commissioner of Customs discretion to grant a warehouselicence, but has not placed upon him an obligation to grant it, wherever one isapplied for.

SA Coconut Mills Ltd vs Government of the People's Republic ofBangladesh and others 54 DLR 1.

Sections 4 & 13–

Formulationof a policy for the exercise of a discretionary power is not an abdication of adiscretion, nor does it amount to adoption of an over–rigid policy.

SA CoconutMills Ltd vs Government of the People's Republic of Bangladesh and others 54DLR 1.

Sections 13 & 111–

For illegalremoval of goods from a bonded warehouse, Customs officials can realise customsduty and other charges along with penalties under section 111. But theprovisions contained in chapter XI of the Customs Act do not authorise anyCustoms official to cancel a bonded warehouse for contravention of anyprovision of the Act, which authority is conferred on the Commissioner" ofCustoms only by section 13 of the Act. The sections are mutually exclusive.

SarwarGarments Ltd vs Chairman, National Board of Revenue and ors 54 DLR 420.

Section 13(2)(b)–

TheCommissioner of Customs in an appropriate case can suspend a licence undersection 13(3) of the Act pending inquiry initiated under section l 3(2)(b) ofthe Act.

SarwarGarments Ltd vs Chairman, National Board of Revenue and ors 54 DLR 420

Section 16–

Export ofgoods in violation of any prohibition under Customs Act or any other law shallmake the goods liable to confiscation besides other penalty. Even if any suchgoods are found to have been concealed in any manner in any place whereconveyance are ordinarily loaded or unloaded, then also penalties can beimposed.

SanaullahChowdhury vs Bangladesh and others 49 DLR 553.

Section 18–

Act ofParliament and delegated legislation– A difference exists between"taxability" or "liability" and its "payability"."Taxability" or "Liability" is a creation of theLegislature. "Payability" can be excused or partially or totallyexempted under the delegated power of legislation.

A Hannan vsCollector of Customs 40 DLR 273.

Sections 18, 19 & 30 –

A right oncevested cannot be taken away by a subsequent notification issued in exercise of delegatedpower.

AhmedHussain and 39 others vs Collector of Customs, Customs House Ctg, and others 48DLR 347.

Sections 18, 19, 25, 30 & 79–

Customs dutyis payable by the importer–respondent on the basis of tariff value in force onthe date of presentation of the bill of entry and not on the basis of invoiceor tariff value in force at the time of opening of letter of credit.

Bangladeshand others vs Mizanur Rahman 52 DLR (AD) 149.

Sections 18, 19, 30, 79 and 180–

Tax andduty, how levied and collected–Article 83 of the Constitution and section· 18,Customs Act. Article 83 of the Constitution makes it quite clear that no taxshall be levied or collected except by and under the authority of an act ofParliament.

A Hannan vsCollector of Collector of Customs 40 DLR 273.

Sections 18 and 19–

Differencebetween sections 18 & 19 Customs Act explained By granting exemption undersection 19, the "rate of duty" of customs under section 18 is notaltered. The "rate of duty" remains as it is prescribed in sections.Section 18 is the business of the Legislature and this power cannot bedelegated. Section 19 is the delegated power of the Government to be exercisedby Gazette notification. Section 19 is to be interpreted in accordance withrules of interpretation of subordinate or delegated legislation.

A Hannan vsCollector of Customs 40 DLR 273.

Section 19–

Section 19is an illustration of the delegated power of legislation. It empowers theGovernment to exempt any goods from the whole or any part of the customs–dutychargeable thereon by gazette notification.

A Hannan vsCollector of Customs 40 DLR 273.

Section 19–

Thenotification issued under section 19 of the Act was without any condition,limitation or restrictions and as such the subsequent notifications cannot haveany operation when a right had vested in the importers and he had acted uponthe assurance that he would have to pay duties at the rate mentioned in theprevious notification.

MostafizurRahman vs Government of Bangladesh and 6 ors 51 DLR (AD) 40.

Sections 19 & 25(7) –

Impositionof customs duty on Bill of Entry– The petitioner cannot invoke the writjurisdiction to challenge the assessment of taxes by customs officers on hisconsigned goods of meltable and re–rollable scraps, not perishable goods,without exhausting the alternative remedies provided in the Customs Act.

TradeChannel vs Collector of Customs, Customs House, Chittagong 44 DLR 127.

Sections 19, 25 & 30 –

Customsauthorities cannot charge custom duty on the basis of rate imposed by SROissued subsequent to the opening of the letter of credit and an importer isentitled to pay custom duty at the rate which was in force on the date ofopening of the letter of Credit.

KhairulBashar and 8 others vs Collector of Customs and others 50 DLR 225.

Sections 19 and 30–

Estoppel–The importer having acted upon assurance given, the Government cannot retraceits steps and ask for duty at the rate mentioned in a subsequent notification.

Collector ofCustoms vs A Hannan 42 DLR (AD) 167

Sections 19 & 30–

Had thepetitioner cleared his goods on payment of customs duty at the prevalent rateand thereafter Government increased the rate and claimed excess duty then hecould say that he acquired a vested right in the rate of customs duty prevalentat the time of clearing his goods and refuse to pay the excess duty claimedfrom him.

AminurRashid vs Collector of Customs and others 48 DLR 503.

Sections 19 & 30–

Thedifference in facts would not make any difference in the application of theprinciple which is based on interpretation of sections 19 and 30 of the CustomsAct.

Collector ofCustoms, Chittagong and others vs Ahmed Hossain and 39 others 48 DLR (AD) 199.

Sections 19, 30 & 30A–

Customs dutycan be made leviable or can be imposed against the particular item, at the rateas it prevails on the date of presentation of the bills of entries. It getssupport from the decision pronounced in the case of Bangladesh vs MizanurRahman, reported in 52 DLR (AD) 149.

Selim (Md)vs Collector of Customs and others 54 DLR 287.

Section 19(1)–

The argumentthat once exemption is granted as to imposition of customs duty the same cannotbe changed or varied does not have any leg to stand when the proviso has beenadded to the provision of section 19(1 ).

Selim (HajiMd) vs Collector of Customs and others 54 DLR 287

Sections 19(2), 25(7) & 30–

Tariff onimported goods– Whether effective on the date of opening of letter ofcredit–The legislature provided that the rate of duty that is in force on thedate of presentation of the Bill of Entry will be applicable to assessment ofduty on imported goods. Since there is no reference to opening of letter ofcredit for such assessment, there is no substance in the contention that therate of duty referred to in the Bill of Entry as was prevailing on the date ofopening of letter of credit will be the basis for assessment of duty.

TradeChannel vs Collector of Customs, Customs House, Chittagong 44 DLR 127.

Section 23–

In asituation where a foreign ship comes into Bangladesh and then turns into awreck, it will come within .the meaning of wreck brought or coming intoBangladesh under section 23 of the Customs Act.

BashiruddinAhmed vs Ministry of Finance, National Board of Revenue 52 DLR 33

Section 25–

When a writpetition is filed on a bald assertion that the high powered committeearbitrarily and fictitiously raised tariff value without any objective material.before it, the High Court Division ought not to rush into issuing a Rule Nisiand stay payment of duties and taxes. It should take notice under section 114(e) of the Evidence Act, 1872 and should start with the presumption ofregularity in official business.

MustafaKamal and another vs Commissioner of Customs and others 52 DLR (AD) 1

Section 25–

When theGovernment or the Customs authority in its affidavit–in–opposition annexesrebuttal materials to show that the prevalent international market price of anyparticular item is approximate to the impugned tariff value, the question ofonus fades into insignificance and the High Court Division is then free todecide on the basis of documents annexed by both sides as to on whose side thescale is heavier.

MustafaKamal and another vs Commissioner of Customs and others 52 DLR (AD) 1

Section 25–

Even thoughthe Government fixes the tariff value on the recommendation of a high–poweredadvisory committee, the committee does not possess an unfettered, discretion indetermining tariff value.

MustafaKamal and another vs Commissioner of Customs and others 52 DLR (AD) 1.

Section 25–

When bothsides have led evidence in· support of their respective cases the question ofonus of proof fades into insignificance and the Court has to decide whether inthe absence of reliable and relevant materials on the part of both sides theincrease in the tariff value was arbitrary or not.

MustafaKamal and another vs Commissioner of Customs and others 52 DLR (AD) 1.

Section 25–

Theinternational market price may at times behave in such a manner that it may benecessary to fix the tariff value at a disproportionately high figure than theinvoice value. It all depends how the international market price has fluctuatedat a given moment.

MustafaKamal and another vs Commissioner of Customs and others 52 DLR (AD) 1.

Section 25–

The customshave no arbitrary right to reject the invoice value. If they do not accept theinvoice value they must have sufficient materials to support their action. Ifany appeal is preferred against the order of any Customs officer in respect ofgoods which are in the custody of the Customs, there is no provision for adinterim relief. So in such cases including the instant case the provision ofappeal under the Act cannot be said to be as equally efficacious as that ofwrit.

RusselVegetable Oil Ltd vs Collector of Customs and others 52 DLR 382

Sections 25 and 193–

The veryconstitutionality of the notification publishing the price of the importedcigarette papers was challenged in the writ petition and the appellateauthority has got no jurisdiction to decide such question of constitutionalityof tariff value of such goods. So, the statutory remedy by way of an appealcannot be said to be adequate and equally efficacious.

Salim (Md)vs Commissioner of Customs and others 56 DLR 228

Section 25(1) –

There is nowherethe term 'indicative value', which can be made the basis or standard legallyfor fixing the value of the imported goods for the purpose of imposing customsduty.

Sew BisharPrasad vs Collector of Customs, Chittagong and others 54 DLR 173.

Section 25(7) –

How thetariff value was determined by the authority that has not been disclosed in thenotification itself. The petitioner also has not produced any materials showingthe fair international market price obtained from authentic sources. In such a situationthe authority cannot be called upon to produce the documents or materials onthe basis of which notification introducing tariff was issued.

Abu Lokmanvs Commissioner of Customs and others 55 DLR 34

Sections 25(7) & 19–

Impositionof customs duty on Bill of Entry– The petitioner cannot invoke the writjurisdiction to challenge the assessment of taxes by customs officers on hisconsigned goods of meltable and re–rollable scraps, not perishable goods,without exhausting the alternative remedies provided in the Customs Act.

TradeChannel vs Collector of Customs, Custom House, Chittagong 44 DLR 127.

Sections 25(7), 30 & 30A –

Therefore,cumulative effect of reading of sections 25(7), 30 and 30A together is that thelevy of duty on the basis of tariff value giving go–by to the scheme and therate as shown in the invoice by the exporter has been levied legally, properlyand with lawful authority.

FriendsCorporation vs Commissioner of Customs and others 51 DLR 23

Section 25A –

Someservices as noticed may have to be rendered within the country but there is noclear cut demarcation as to the length of service rendered within the countryand the service rendered outside the country and unless that is determined VATcannot be levied even if it is permissible under the VAT Act on the ground ofuncertainty and ambiguity.

Intertek TestingServices International Limited and others vs National Board of Revenue andothers 55 DLR 691·

Section 2 –

A scrapvessel is dutiable under HS Code heading No. 8908, and moveable and consumablegoods from the vessel which are fit for home consumption without being scrappedare classified under their respective HS Codes. The argument of double taxationdoes not arise at all.

DidarulKabir (Md) vs Commissioner of Customs and others 55 DLR 11.

Section 27(5) –

A scrapvessel purchased in an auction held by the Court in an admiralty suit is notassessible for customs duties and other charges on the basis of auction pricebut on the basis of tariff value fixed under section 27(5) of the Customs Act.

DidarulKabir (Md) vs Commissioner of Customs and others 55 DLR 11.

Section 32–

Rahima FoodCorporation vs Deputy Collector of Customs 49 DLR 510.

Section 32–

Rahima FoodCorporation vs Deputy Collector of Customs and others 49 DLR 510.

Sections 32 & 156(1)(4)–

The appellanthas not been convicted by the Magistrate for the alleged offence committedunder section 32 of the Act and therefore the imposition of fine is withoutjurisdiction.

Hossain vsCustoms, Excise and VAT Appellate Tribunal and others 54 DLR 193

Section 32(2)–

Thepetitioner on receipt of demand notice from the Customs authority went to theappellate authority and did not raise the question of non–service of notice.This shows he had waived the right of hearing as contemplated under thisprovision of Jaw.

EasternChemical Industries Limtied vs Government of Bangladesh 48 DLR 84.

Sections 32(3), 193 & 194–

DeliciaDairy Food Ltd vs Collector of Customs and others 51 DLR 381

Section 33–

There is atacit admission in this provision that the customs authorities may levy excesscustoms duties or charges "through inadvertence, error ormisconstruction" and there is a clear provision for refund of excessrealisation.

Commissionerof Customs, Chittagong vs Giasuddin Chowdhury. and another 50 DLR (AD) 129.

Section 33–

The customsauthorities cannot resort to the law in refusing to refund money realisedmistakenly as VAT, on grounds of limitation provided therein, simply for thereason that while levying VAT on the item they did not act under the same law.

WahidullahMajumder vs Bangladesh and others 49 DLR 400.

Section 33–

Thepetitioner having released the goods on payment of additional customs dutiesand sales tax ought to have asked for refund under section 33 of the CustomsAct within six months. He having not availed of this alternative efficaciousremedy the writ petition is not maintainable on this score as well. LatifurRahman CJ .

Bangladeshand others vs Mizanur Rahman 52 DLR (AD) 149.

Sections 48 & 82–

Refusal ofclearance to imported goods–In the present case M/S MA Baker submitted the Billof Entry as the owner of the disputed cement and assessment of duty was made inrespect of the entire cement. M/S MA Baker paid import duty for 4000 metrictons out of 10,000 metric tons. The respondent then came in and asked forclearance of 5000 metric tons as the substituted owner of the said cement.Customs Authority does not clear the goods raising objection as to proceduralmatter. The legal course for the respondent was to approach the CCI & E'who alone could issue release instruction to the Customs Authority. BangladeshBank made CCI&E's clearance a condition precedent for its own clearance.The respondent did not have the necessary clearance and, as such, it cannot besaid that the customs authority acted without jurisdiction in refusing clearanceof the goods.

Bangladesh &Abu Taleb vs Anis & Co. & others 44 DLR (AD) 65.

Section 55–

Agent'sliability–An action of the principal which has got a criminal liability is anaction in personem, not in rem. There having been nothing to show that theagent has taken all the liability for even such individual action, the agentdefendant No.3 cannot be held liable in the present case for the principaldefendant Nos. 1 & 2. The agent will, in fact, be liable only for thoseactions of the principal which are prescribed in law or in some contractbetween the agent and the principal.

SadharanBima Corporation vs Philoship Co. 44 DLR 31.

Sections 79 and 80–

Customs Actexplained. What is "bill of entry"–Section 30 and its relationshipwith sections 18 & 19 Customs Act.

We may nowbriefly look into the relevant provisions of the Customs Act. Section 79 of theCustoms Act lays down provision for the making of a bill of entry and itprovides that the owner of the imported goods shall make entry of such goods forhome–consumption or warehousing or for any other approved purpose by deliveringto the appropriate officer a bill of entry thereof in such form and manner andcontaining such particulars as the Board may direct. Section 60 provides thaton the delivery of such bill, the goods or such part thereof as may benecessary may, without undue delay, be examined or tested, and thereafter thegoods shall be assessed to duty, if any, and the owner of such goods may thenproceed to clear the same for home–consumption or warehouse them, subject tothe provisions of sub–section (2).

Section 30provides that the rate of duty applicable to any imported goods shall be therate of duty prevailing on the date of delivery of the bill of entry to theappropriate customs officer. "Rate of duty" in section 30 is clearlyreferable to section 18.

Section 19does not provide for any "rate of duty" at all. Section 30 has noreference to section 19.

A Hannan vsThe Collector of Customs 40 DLR273.

Section 82–

The Customsauthority has rightly and lawfully sold the goods in auction as the goods didnot lawfully enter into Bangladesh and remained unclaimed and uncleared incustoms station beyond the specified period.

Mian AhmedKibria vs Government of Bangladesh and others 50 DLR 496.

Section 168(1) –

For illegaland unauthorised actions of the Government officials Government cannot be heldresponsible.

ShawnApparels Ltd vs Commissioner of Customs 52 DLR 316.

Section 168(1)–

Whenever anymistake is detected it can be remedied at any stage by resorting to legalprovisions.

ShawnApparels Ltd vs Commissioner of Customs 52 DLR 316

Section 180–

Only thatperson is entitled to get a show cause notice from whose custody the goods inquestion is seized. In the instant case the goods were seized from an abandonedtruck and therefore the order of confiscating the goods in the absence of theshow–cause notice could not make the order of confiscation as illegal.

Governmentof Bangladesh and others vs Abu Musa 53 DLR (AD) 77

Sections 180 & 181 –

If section180 is read with section 181 of the Act it appears that fine can be imposed inlieu of confiscation of the goods only if the goods were confiscated onadjudication under section 180 of the Act.

ShawnApparels Ltd vs Commissioner of Customs 52 DLR 3161

Section 181(1) –

The customsauthority has not applied the provision of section 181(1) of the Customs Actcorrectly as the customs authority had not given any option to the appellant topay fine in lieu of the confiscation of the goods.

Hossain vsCustoms, Excise and VAT Appellate Tribunal and others 54 DLR 193.

Section 193–

An appeallies against any decision or order passed under this Act except an order passedunder section 82 or 98 of the Act.

ShawnApparels Ltd vs Commissioner of Customs and others 52 DLR 316.

Sections 193 & 194–

The impugnedorder does not show any consideration of any hardship as to deposit of 50%penalty, instead without exercising the discretion the respondent hasarbitrarily issued the impugned order not sustainable in law.

RainbowShipping Lines vs Collector of Customs and others 53 DLR 408.

Section 193C(3)–

No step hadbeen taken by the petitioner either before the Review Committee or before theAppellate Tribunal to bring those papers for their consideration and the Tribunalhad exercised its discretionary power as contemplated under sub–section (3) ofsection 193C as aforesaid fairly and reasonably and not aribtrarily. Thejusticiability of the decision cannot be questioned under the process ofjudicial review as theTibunal has not acted outside its jurisdiction.

Sharif andBrothers vs Commissioner of Customs and others 52 DLR 362.

Section 194–

Altemativeremedy– Altemative remedy of appeal provided in the Customs Act, and pleaded asa bar against Wiit Jurisdiction, is no equally efficacious remedy.

Collector ofCustoms vs A Hannan 42 DLR (AD) 167.

Section 196A–

Mereallegation of violation of the provisions of law cannot give rise to any causeof action for filing a writ petition when there is forum for seeking remedyagainst the impugned order.

Zahur Ahmedvs Commissioner of Customs and others 51 DLR 206·

Section 196B–

The words"records of the proceeding" mentioned in section l 96B, means recordswhich were available before the Member NBR, but the revisional authorityconsidered one map supplied by Bangladesh Navy which was a new/extraneousmaterial and respondents acted illegally in considering new and extraneousmaterial at the time of hearing of the revision case.

AmaraHolding Inc. represented by Mariners (Bangladesh) Ltd vs Bangladesh, representedby the Secretary and Chairman, NBR, Ministry of Finance and others 51 DLR 211.

Declaration and Alterations of Municipalities Rules, 1978

Declarationand Alterations of Municipalities Rules, 1978

Rule 1(2)–

Thepetitioner's statistical report over the entire Mouza has no manner ofapplication, rather the specific report on the extended area invites the primeconsideration because the law only provides for the area as shown in thenotification described by plot numbers and JI number but not by the entireMouza, the Ward or Union as alleged by the petitioner.

SultanaBegum and others vs Government of Bangladesh and others 55 DLR 190.

Defence of Pakistan Rules, 1965

Defence ofPakistan Rules, 1965

Rule 16–

Sincethere is no evidence and materials on record showing the vendor of thepetitioner or the predecessor–in–interest of the vendor of the petitionermigrated to India before 1955 and it was declared and treated as enemy propertybefore the Ordinance and Rules 1965 ceased to have effect, the proceedingtreating the suit plot as vested property in 1980 is illegal and inoperative.

Indu Moti Howladervs Additional Deputy Commissioner and others 50 DLR 444.

Rule 169(4)–

Debotterproperty in any way cannot be taken over as an enemy property and the samecannot be put to sale.

LaxmiJanardhan Jew Thakur and 3 others vs Government of the People's Republic ofBangladesh, and others 50 DLR 273.

Rule 169(4)–

Defines"Enemy Property"–In view of the compromise decree Hrishikesh Roy hadsubsisting right in the disputed property and as such the property could not betreated as "Enemy Property."

Parul KusumRoy vs Bangladesh 39 DLR 389.

Rule182(1)(b) –

Hrishikesh Roy having no right to possessionand the same having remained in the petitioner and Parul Bala Roy who neverleft for India the disputed property does not come within the scope of EnemyProperty and a vested property.

Parul KasumRoy vs Bangladesh 39 DLR 389.

Delimitation of Constituencies Ordinances, 1976

Delimitationof Constituencies Ordinances [XV of 1976]

Section6(2)–

Practicalityof conditions enumerated under this provision is matter of assessment of factby the Election Commission which cannot be enquired into in Writ jurisdiction.

Abul Hashim(Md) vs Election Commission of Bangladesh 48 DLR 490.

Dhaka Metropolitan Police Ordinance, 1978

DhakaMetropolitan Police Ordinance [III of 1978]

Section 4–

Aclose look into section 4 of the said Ordinances vis–a–vis sections 10, 18, 20and 21 of the Code, it would appear that in a Metropolitan Area some of thepowers which were dealt with by the District Magistrate, have been given to thePolice Commissioner, and some of them have been given to the Chief MetropolitanMagistrates and Metropolitan Magistrates, debarring the District Magistrate toexercise all or any of the powers which could be exercised by him before thepromulgation of the said Ordinances and the amendments made in the Code and theSpecial Powers Act.

AnwarHossain (Md) and others vs State and others 55 DLR 643.

Dhaka Municipal Corporation

DhakaMunicipal Corporation Ordinance [XL of 1983]

Section 115–

TheMunicipal Corporation has no power to evict trespassers before cancelling eachallotment or lease stating reasons thereof as required under the provisions ofOrdinance No. 24 of 1970.

MirzaShamsuddin Beg vs Bangladesh 41 DLR 359.

DhakaMunicipal Corporation (Election of Commissioners) Rules, 1983

Rule 54(2)–

Electiondispute–Election Tribunal's decision–Its finality–Neither in this rule noranywhere else it has been provided that the Election Tribunal's decision on anelection petition shall be final and shall not be called in question in orbefore any court–no such finality has been attached to the decision of thetribunal under the Ordinance or the Rules–it is difficult to appreciate as tothe basis upon which High Court Division has held that the decision of theTribunal is final.

MahmudulAlam vs Sanwar Hossain Talukder 42 DLR (AD) 211.

Dhaka Town Improvement Act, 1953

Dhaka TownImprovement Act [XIII of 1953]

Section 2,Clause (E)–

Theclause defines Chamber of 'Commerce'–Clause (E) to section 2 of theTown.Improvement Act defines Chamber of Commerce and it is defined to mean aBoard or Committee constituted to promote the interest of trade, commerce orindustry, operating in Dhaka and Narayangonj and recognised by the Governmentas such–Chamber of Commerce would include chamber of commerce operating inDhaka and Narayangonj–Govemment has the discretion to appoint any of the two bodiesas the representative in DIT Board of Trustees.

DCCI vsSecretary 39 DLR 145.

Dhaka Water Supply and Sewerage Authority (Service) Regulations, 1990

Dhaka WaterSupply and Sewerage Authority (Service) Regulations, 1990

Regulation59–

Decisiontaken by the Board of the Authority as regards the subject matter of Agenda todispose of objections as regards provisional seniority list of 1986 as perprovision of the Regulations of 1990 is violative of the provisions of theRegulations of 1990.

MunirHossain and others vs Dhaka Water Supply and Sewerage Authority & others 48DLR 121.

Dissolution of Muslim Marriage Act, 1939

Dissolutionof Muslim Marriage Act [VIII of 1939]

Section 2(VIII) (a) –

Restitutionof conjugal rights by the husband

Crueltyof conduct of the husband is a valid ground to refuse such rights. Compellingthe wife to do domestic work amounts to cruelty of conduct. Under the provisionof section 2(VIII) of the Dissolution of Muslim Marriage Act physical assaultand making the life of the wife miserable by cruelty of conduct even if such conductdoes not amount to physical ill–treatment are cruelty– In the well–todo familyof the parties compelling the wife to do domestic work is also physical andmental torture. Physical and mental torture of the wife is not only an offencebut also a valid ground to refuse restitution of conjugal rights to the husbandand to allow maintenance to her in terms of the Nikahnama as she was compelledto leave the husband's house on account of his cruelty.

Hosne AraBegum vs Alhaj Md Rezaul Karim 43 DLR 543.

Drug Control Ordinance, 1992 & Drugs Act, 1940

Drug ControlOrdinance [VIII of 1992]

LicensingAuthority without recommendation of the Drug Control Committee, cannot cancelthe registration of a medicine.

Ruhul Aminvs Director, Drug Administration 39 DLR158.

Drugs Act [XXIIIof 1940]

Section5(1)–

Manufacturersof Non Ayurvedic and non–Unanimedicines must get a licence for the purpose and also must register theirmedicine with Licensing Authority. Manufacturer of Ayurvedic and Unanimedicines are only to register their medicines with the Licensing Authority andnothing more under section 5(1).

Ruhul Aminvs Director, Drug Administration 39 DLR 158.

Section6(1)–

Director,Drugs Administration and Licensing Authority has no power either to issue orcancel manufacturer's licence of unani medicine–His cancellation effort of suchmanufacturer's registration arbitrary.

Ruhul Aminvs Director, Drug Administration 39 DLR 158.

Druto Bichar Tribunal Ain, 2002

Druto BicharTribunal Ain [XXVIII of 2002]

Section4(4)–

Thereis no bar to use the beneficial part in a statute, if any, in favour of theaccused in the matter of holding his trial.

Abdul KaderMirza and another vs Bangladesh and others 56 DLR 31.

Section 6–

Nostringent provision has been incorporated in the new law even regarding bail.There is no reason how this reduction of the time limit will affect thepetitioners when the other conditions relating to trial remains the same.Article 35 clearly provides that a person accused of a criminal offence shallhave the right to a speedy trial.

MuhiburRahman Manik anrl others vs Bangladesh and others 55 DLR 636.

Section10(4) –

Noprovision has been made in the Ain to the effect that the case shall beconcluded at any cost within the specified time by giving go–bye to theestablished principles of trial causing no prejudice to an accused.

MuhiburRahman Manik and others vs Bangladesh and others 55 DLR 636.

Easement Act, 1882

Easement Act[V of 1882]

Section 4–

Definitionof easement– An easement is always appurtenant to the dominant tenement– Therecan be no easement without dominant tenement.

Thedefinition of easement given in section 4 clarifies that an easement is alwaysappurtenant to the dominant tenement and inseparably attached to it and cannotbe severed from it. There can be no easement without dominant tenement and aservient tenement. Section 18 deals with customary easement and it says thatcasement may be acquired by virtue of local custom. But it is completelydifferent from customary right because customary right is not an easement.

Abdul Matinvs Taibunnessa 41 DLR (AD) 88.

Section 4–

Ina suit for prescriptive right of way, the plaintiff must show that such user ofthe pathway was continuous, quiet, uninterrupted and to the notice of theservient owner and the same is not dependent upon the permission of theservient owner at all.

Abdul Latifvs Attar Ali 42 DLR 115.

Easementright–

Presumptionof–It is apparent that the mentioning in the kabala of the existence of thedisputed pathway some time over 50 years' back is a strong presumption that theuser of the right is nothing but as of right, that is to say it has a lawfulorigin and therefore it cannot be brushed aside by saying that walking overother's land even for hundred years does not create any easement right.

Abdul Latifvs Attar Ali 42 DLR 115.

Section 13–

Rightof easement invades upon the right of the servient owner and, therefore, alleasement should be specifically pleaded so that the servant owner can meet theclaim.

Mohsin AliChowdhury vs Muzammel Khan 42 DLR 167.

Section 15–

EasementAct, 1882 deals with customary easement, Easement Act does not deal withcustomary right. It refers to customary rights no doubt, but that is for thepurpose of making it abundantly clear that while the Act governs the former ithas no concern with the latter.

Whatthe plaintiffs claimed was customary right and not customary easement.

Hencethe Courts below while approaching the case made an erroneous decision bytaking in view the principles of Easement Act. The submission is devoid of anysubstance because it makes a distinction without any difference.

Abdul Matinvs Taibunnessa 41 DLR (AD) 88.

Section 15–

Rightof easement– Acquisition of–Prescription–Important ingredient for findingeasement by prescription is whether enjoyment by prescription is in assertionof right.

Mohsin AliChowdhury vs Mazammel Khan 42 DLR 167.

Section 15–

Section15 is not exhaustive and does not preclude other titles or modes of acquisitionsuch as by grant, express or implied. The act is thus remedial in nature and isneither prohibitory nor exhaustive.

Abdul Latifvs Attar Ali 42 DLR 115.

Section 15–

Easementof necessity is a question of fact to be gathered from the facts andcircumstances of each case. Easement of necessity means an easment absolutelynecessary for the use of the dominant tenements.

Abdul Latifvs Attar Ali 42 DLR 115.

Sections 15 &18–

Customaryeasement and prescriptory easement–Customary easement is different fromprescriptive easement. In order to establish the right of customary easement itis not necessary to show that it has been enjoyed from time immemorial or forover 20 years. A customary easement is in favour of a class or community andcannot be in favour of an individual whereas in the case of the prescriptiveeasement it is essential that it was for a period of 20 years or more.

Abdul Azizvs MojahidAli 44 DLR 511.

Section 18–

Customaryright of easement– Illustration to section 18 of the Easement Act– Appellant'scontention against the Subordinate Judge's findings.

Abdus Sobhanvs Jamiruddin Jaigirdar 40 DLR 488.

Section 41–

Easementof necessity is extinguished when the necessity comes to an end.

Mohsin AliChowdhury vs Muzammel Khan 42 DLR 167.

Section 44–

Thealleged easement right of the contesting defendant in the suit property totallyextinguished by subsequent developments by a total change of the nature andcharacter of the property.

Osi MeahSowdager vs Tulsidham Akherar Madam Mahan Narasingha and others 54 DLR 409.

Section 52–

Licensee'sright to transfer– No particular meaning of licence having been given in thelease deed it will have the meaning given in the Easements Act and accordinglya licensee has no right to transfer the property in question.

Bangladeshvs Ibrahim Bepari 42 DLR (AD) 184.

Sections 52& 60–

Licencefor permanent construction–Whether grantor of the licence can derogate from thegrant–In the present case the respondent spent money on the construction of thebuilding knowing that the land belongs to the appellant. The question iswhether he can claim title in the building. The claim must have. for its basishis ownership in the building. Had he constructed the building in the bonafidebelief that he was the owner of the land, he could have at most claimedcompensation or asserted his right to remove the structures. In view of thefinding that Ext. I, a letter of authority to raise loan and no licence toconstruct a building, the respondent is not entitled to get any relief and hissuit is liable to be dismissed.

Hameeda Banuvs AFM Naziruddin 43 DLR 623.

East Pakistan Ordinances

EastPakistan Disturbed Persons (Rehabilitation) Ordinance [I of 1964]

No totalprohibition for filing suit under Ordinance No.1 of 1964 – High Court Divisionerred in misapplying the law to the facts of the case– No date having beenfixed for the performance of the Contract, the second part of column 3 ofArticle 113 of the Limitation Act will apply to the case ie time will beginwhen plaintiff has notice that performance was refused.

Bangladesh,represented by the Deputy Commissioner, Pabna vs Md Abdus Sobhan Talukder42 DLR(AD) 63.

EastPakistan Engineering and Technology University Ordinance, 1961

Section 16–

Theappointment in a teaching post of the University although can only be made bythe syndicate but the syndicate being a creation of Ordinance, cannot actarbitrarily or capriciously but must act judicially and fairly.

Dr MdAlamgir vs Vice Chancellor, BUET and others 53 DLR 398.

EastPakistan Government and Local Authority Land and Buildings (Recovery ofPossession) Ordinance [XXIV of 1970]

Sections 2(b) & 5–

The DeputyCommissioner or Additional Deputy Commissioner or Joint Deputy Commissioner orsuch other persons as may be appointed by the Government to perform any of thefunctions of a Deputy Commissioner under the Ordinance is competent to pass onorders of eviction of an unauthorised occupier of Government khas land. In viewof the above the respondent No. 2 was not competent to initiate the proceedingfor eviction of the petitioner.

Abarak Alivs Shefaul Karim, Assistant Commissioner, (Land) Jagannathpur, DistrictSunamganj 51 DLR 183.

Section 5–

As thelegislature intended the notice period to be mandatory, subsequent addition ofthe proviso was made to reduce the notice period from 30 days to 7 days andthus the time limit of 7 days' notice was amended.

Aleya Begumand others vs Bangladesh and others 53 DLR 63.

Section 5–

Justicedemands that even trespassers cannot be evicted forcibly without notice andwithout giving chance to them to remove themselves willingly.

Aleya Begumand others vs Bangladesh and others 53 DLR 63.

Section 5–

Aleya Begumand others vs Bangladesh and others 53 DLR 63.

Section 5–

Theprovisions of section 5 of Act 24 of 1970 as amended vide President's Order 85of 1972 with regard to service of 7 days' notice before eviction are mandatoryand not directory.

Aleya Begumand others vs Bangladesh and others 53 DLR 63.

Section 5–

Evictionprocess initiated without providing required 7 days' notice illegal and withoutjurisdiction.

Modhumala vsDirector, Housing and Building Research Institute & ors ( Spl. Original) 53DLR 540.

Sections 5-9 –

When theGovernment has not acquired the entire land and it is found that the land hasnot been demarcated to show the actual acquisition of land in the LA Case, theimpugned order cannot be sustained in law.

Duran Begumvs Railway Lands and Buildings and others 54 DLR 448.

EastPakistan Intermediate and Secondary Education Ordinance, 1961

Section 45–

Maintainabilityof suit–In view of the clear provisions of section 45 of the East PakistanIntermediate and Secondary Education Ordinance, 1961, I think the SeniorAssistant Judge ought to have allowed the application of the defendants underOrder VII, rule 11 ( c) of the Code of Civil Procedure and ought to haverejected the plaint as no Civil suit lies in the above premises.

ManagingCommittee, Labannaya Prova Bahumukhi High School vs Amullya Kumar Sarker 48 DLR303.

EastPakistan Water Supply & Sewerage Authority Ordinance [XIX of 1963]

Sections 11, 13, 14, 26 & 27–

Fordetermination of seniority or inter–se seniority length of service would becounted from the date of appointment in a particular post and not according tothe date of one's confirmation in the post. AKM Fazlullah vs.

ChittagongWater Supply and Sewerage Authority WASA Bhaban and others 49 DLR 445.

Electoral Rolls Ordinance [LXI of 1982]

ElectoralRolls Ordinance [LXI of 1982]

Section 8–

Permanentresident of Bangladesh temporarily residing in the UK having attained the ageof 18 years and not declared by a competent Court to be of unsound mind isentitled to be registered as a voter in Bangladesh.

ATM Ali RezaKhan vs Bangladesh Election Commission and others 50 DLR 58.

Section 15–

Correctingelectoral roll— Election Commission in exercise of its power under section 15can correct the wrong printing of fictitious name in the electoral roll if themistake is brought to its notice.

MatiurRahman vs Election Commission 43 DLR 229.

Electricity Act, 1910

ElectricityAct [IX of 1910]

Section 24–

Disconnectionof electricity line– Question of giving notice– Materials on record show thatthe Power Development Board removed its transformer from the appellant'scontrol in order to forestall reconnection of electric line that the appellantwas doing on his own. There having been nothing to show that the Board everofficially reconnected the line after it was disconnected, the appellant cannotlegitimately claim 10 days' notice as provided under section 24 of the Act.

GiasuddinBhuiyan vs Chairman, PDE 45 DLR (AD) 29.

Emergency (Land and Building) Requisition Ordinance, 1982

Emergency(Land and Building) Requisition Ordinance [II of 1982]

Sections 5 & 44–

Section 5 ofthe Ordinance provides that the decision of the government shall be theconclusive evidence that the property is needed for a public purpose. The HighCourt Division is correct in saying that if from the pleading it can be seenthat the purpose does not appear to be in public interest the Civil Court'sjurisdiction is not ousted by section 44 of the Ordinance.

Ali Jan Khanvs Bangladesh 37 DLR (AD) 161.

Section 44–

Property hasbeen acquired for valid purpose, the Civil Court has no jurisdiction toquestion the acquisition.

Ali Jan Khanvs Bangladesh 37 DLR (AD) 161.

Emergency Requisition of Property Act, 1948

EmergencyRequisition of Property Act [XIII of 1948]

Section 3–

Prayer forthe recovery of possession is not necessary because the Government petitionersare not trespassers.

Governmentof Bangladesh vs Basharatullah 40 DLR 554.

Section 3–

The suitproperty having been requisitioned and taken possession of by the Government on16–2–72, before President's Order No.16 of 1972 came into force, it cannot betreated as abandoned property.

Md Zaher vsBangladesh 42 DLR 430.

Sections 3 and 4(1)–

Notice forrequisition and permanent acquisition of a property under the– · Act–An orderof requisition is made under section 3 by the DC and section 4(1) provides fornotice "on the owners of the property by delivering or tendering it tohim," etc– It further provides for proclamation of the order by beat ofdrum in the locality in which the property is situate which contemplates apersonal and public service of the order of requisition.

Bangladeshvs Basharatullah 42 DLR (AD) 91.

Sections 3 & 5–

Mere non-useof the acquired land for the purpose for which it was acquired will not giveanyright to get return of the same. Once a property is validly acquired aftermeeting the legal formalities it vests in the Government and its previous ownerdoes not have any right to ask return of the same for its nonutilisation forthe specific purpose for which it was acquired.

Abul Basherbeing dead his heirs Hosne Ara Begum and others vs Bangladesh and others 50 DLR(AD) 11.

Sections 3, 5–

Since thereis nothing to show that the Government decided to release the land in favour ofthe petitioner and since the land was acquired and vested in the Governmentfree from all encumbrances, the petitioner has not acquired any right to getback the land only because it has been allegedly kept unused.

Nur Hossain(Md) vs Secretary, Ministry of Land and ors 52 DLR 275.

Sections 3, 4, 5, 5A, 5(1a)(3), 7 and 14(A)–

Acquisitionof property– Question of non–service of notice– Trial Court held that serviceof notice contemplated in section 5(la) and 5(3) of the Act must be prior tothe intimation of the acquisition has been rendered invalid for the want ofstatutory notice, the service of notice which is posterior to the acquisitioncannot legally have any retrospective effect and as such a subsequent freshservice of old notice cannot have any legal effect of legalising the illegalacquisition–Appellate Court concurred with the finding that the service of oldnotice under section 5(la) along with that under sub–section (3) of the Act on23–4–73 upon the plaintiffs giving only 7 days' time to file objection was notvalid and legal–Revisional Court did not interfere with the finding by holdingthat the absence of notice under section 5(Ia) and 5(3) was already decided inTS No.36/68.

Bangladeshvs Basharatullah 42 DLR (AD) 91.

Sections 3, 5(1) and 7(e) –

Whether thecompensation should be assessed on the average value of land during the periodof 24 months prior to the date of service of notice (14–4–1962) for acquisitionunder section 5(1) of the (Emergency) Requisition of Property Act– So far asthe position of law is concerned, this is the exact position as specificallyprovided in clause (e) of the section 7 of the (Emergency) Requisition ofProperty Act.

Abdul GafurKhan vs Bangladesh 42 DLR (AD) 99.

Section 4A(2) –

The facts ofthe present case are completely different. Save and except a view was takenthat 44 decimals was derequisitioned, nothing further was done and no enquirywas either held as contemplated by Rule 10(2). Therefore, it cannot be saidthat any right had accrued to the appellant which should not be recalled.

Amirul Islamvs Secretary, Ministry of Land Adm 40 DLR (AD) 52.

Section 5(1) and 5(1a)–

Noticesunder section 5(1) – Defendant-petitioners formulated a fraudulent device toserve a copy of the alleged original notice under section 5(1) dated 21-6-60putting a fresh date of issue in the notice under section 5(1a) upon theplaintiffs giving 7 days' notice instead of 15 days' notice as required by law.

Governmentof Bangladesh vs Basharatullah 40 DLR 554.

Section 5(aa) and 5(3)–

Notice undersection 5(1a) and 5 (3) are mandatorily required to be served before the DeputyCommissioner submits his reports on failure of which the whole game ofcompulsory acquisition of private land will be left to the ipse dixit of theExecutive.

Governmentof Bangladesh vs Basharatullah 40 DLR554.

Section 5(1a) and 5(3)–

The suitland was requisitioned with the object of permanent acquisition, but no noticeunder sections 5(la) and (3) was served "either in the locality or on theplaintiffs as required by law for acquisition."

Munsifdecreed the suit in favour of the plaintiff–opposite parties and came toconclusion that notices under section 5(la) and 5(3) of the said Act were notserved on the plaintiffs and as such there was no valid acquisition of thedisputed property.

Governmentof Bangladesh vs Basharatullah 40 DLR 554.

Section 5(1A) (3)–

Service ofnotice in respect of requisition of land for public purposes is mandatoryrequirement of law. When such notice is served upon the owner of the land thereis no need to serve the same afresh upon the subsequent transferee of the land.

Bangladesh,represented by the Secretary Ministry of Land vs Abul Hossain and others 51 DLR(AD) 25.

Section 5(1a) (3)–

Review maybe granted only for sufficient grounds akin to those of Order XLVII, rule I ofthe Code. To permit a review on the ground claimed by the petitioners willamount to rehearing of the matter and our sitting on appeal over our ownjudgment which is not permissible in law.

Abul Hossainand 3 others vs Bangladesh represented by the Secretary, Ministry of Land andothers 51 DLR (AD) 116

Sections 5(1a) and 14A–

The serviceof 7 days' notice under section 5(a) is no compliance with the provisions ofsection 5(1a). The bar of section 14A of the Act does not apply.

Governmentof Bangladesh vs Basharatullah 40 DLR554.

Sections 5(B), 7 & 7 (aaa)–

Where aproperty is requisitioned under section 5(B) with a view to its permanentacquisition, the owner of the property shall be offered, before possession istaken over, compensation to the extent of either 100% for structure andbuilding or 90% for lands of the provisional estimate. Section 7 lays down themanner and principle for payment of compensation for immovable property and subsection(aaa) of section 7 provides for arbitration in case of non–acceptance ofcompensation by the land owners and sub–sections c, cc, d, and c of section 7lay down how an arbitrator shall proceed in calculating the market value of theland requisitioned.

Abdul Bashar(Alhaj), being dead his legal heirs 1(a) Hosne Ara Begum & others vsBangladesh and others 48 DLR 553.

Section 5(5)–

Inter-ministerialletters and memos referring to the policy of the Government do not create anylegal duty upon the requiring authority and the concerned Ministry toderequisition the unutilised land in question. The requiring authority is verymuch the authority to decide what land it requires to keep and what land it mayreturn for being excess and unutilised land.

Abul Bashar(Alhaj), being dead his legal heirs 1(a) Hosne Ara Begum & others vsBangladesh and others 48 DLR 553.

Section 5(7)–

A noticeunder section 5(1a) and 5(3) is mandatory before the Government can at alldecide to acquire requisitioned property. If notice was not valid under law,then subsequent acquisition under section 5(7) is also illegal.

Governmentof Bangladesh vs Basharatullah 40 DLR 554.

Section 7–

Theplaintiff being entitled to a decree that the suit property is not an abandonedproperty and the Government having disclaimed the same as requisitionedproperty, the latter is liable to restore its possession to the plaintiff and ·also to pay rent/compensation under the Requisition of Property Act for itsuse and occupation from 14–2– 72 till the possession of the property isrestored to the plaintiff.

Md Zaher vsBangladesh 42 DLR 430.

Section 7–

Appealagainst Arbitrator's award of compensation–Question of limitation for theappeal and nullity of the award–When the Arbitrator had jurisdiction todetermine compensation under section 7 of the Act but did not determine it inaccordance with the provision thereunder that would then be an error inexercise of his jurisdiction and in such a position the award cannot beregarded to be one without jurisdiction and a nullity. The Court cannot probeinto the question of nullity of the award sitting in appellate jurisdictionwhen the appeal had not been filed within the period of limitation.

Bangladeshvs Md Ishaque 45 DLR 223.

Section 7(AA)–

After aperiod of 7 years notice under section 7(AA) was served on the owner of theproperty. On this score the question of payment of compensation of the acquiredproperty in terms of market value of 1960 does not arise at all. Thecompensation is to be paid as per market value which was prevailing on the dateof acquisition of the property.

Hossain Khan(Md) and others vs Government of Bangladesh & others 55 DLR 264.

Section 7(e)–

Statutoryprovision of law is section 7(c) of the Act in respect of determination ofcompensation.

When theArbitrator fixed the compensation at Taka 20,000 per acre taking the averagebetween 1961 and 1968, Government did not file any appeal but accepted theaward– Though notice for acquisition under section 5(a) was served in 1962 theland was actually acquired in 1968 after the expiry of 6 years when the valueof the land increased to a great extent– There should be some proximity betweenthe date of notice for acquisition and that of actual acquisition–Assessmentmade by the High Court Division at Taka 30,000 per acre has met the ends ofjustice.

Abdul GafarKhan vs Bangladesh 42 DLR (ADJ 99.

Section 7(e)–

Indetermining the market value of the land acquired the Court shall take intoaccount the average value of similar land with similar advantage during thetwenty–four months preceding the date of service of initial notice foracquisition.

Pak EasternIndustries Ltd vs DC, Dhaka and another 56 DLR 259.

Section 7(e)–

Duringdetermination of the price in a case where the Government takes unnecessarylonger time to publish the statutory notification resulting in an increase ofthe market price, the authority may consider some compensation in addition tothe price determined on the above mode and manner of calculation on thetwenty–four months' rule preceding the date of service/publication of initialnotice for acquisition.

Pak EasternIndustries Ltd vs DC, Dhaka and another 56 DLR 259.

Section 7(f) & Rule 9(6)–

Appeal againstfinal award before the High Court Division– Appellate Court is not empoweredto condone the delay of time–barred appeals under section 5 of the LimitationAct in view of clear provision of section 29(2) which excludes application ofsection 5.

Ishaque vsBangladesh 43 DLR (AD) 28.

Section 8–

Restorationof requisitioned property–it is the function of the Deputy Commissioner todecide the claim of any person for restoration of requisitioned land. Only whenthe Deputy Commissioner exercised the jurisdiction without lawful authority,the High Court Division can exercise jurisdiction in the matter.

SarwarjanBhuiyan vs Bangladesh 44 DLR 447.

Section 8B–

Aftercompensation is paid for acquisition of land no order can be made forderequisition of such acquired land.

Bangladeshvs Commercial Trust of Bangladesh Ltd. 46 DLR (AD) 89.

Section 8B–

Ifcompensation has not been paid order of withdrawal of requisition andacquisition may be made.

MatiurRahman vs Bangladesh 46 DLR 638.

Section 8B–

Once aproperty has been validly acquired for a public purpose, then even if theproperty be utilised for a different purpose, the acquisition shall not standvoid.

BrahmanbariaPourashava vs Secretary, Ministry of Land Reforms, Government of Bangladesh andothers 51 DLR (AD) 84.

Section 8B–

If thepurpose serves some public use or interest as opposed to the particularinterest of an individual the purpose is public.

Arbi Khanomand 4 others vs State 52 DLR 367.

Section 8B–

Therequisitioned land is not liable to be released even if it remains unutilisedby the requiring body.

Ali Ahmedand others vs Government of Bangladesh and other 55 DLR (AD) 92.

Section 14A–

Bar ofsuit–There was no question of the authorities acting without jurisdiction oracting in a manner without following the procedure provided for in the statute–The bar of the suit under section 14A of the Act is inexorably attracted tothis and it must be held that the suit itself was barred.

Compensation–though not in issue in the suit is at the centre of all the litigations beingcarried on from 1963–Fresh notice will have a direct bearing on thedetermination of compensation–But now that a whole decade has passed betweenpublic notice under section 5(1a) dated 14–12–60 and the publication of theGazette under section 5(7) of the Act, the matter or compensation assumesgreat importance because of the phenomenal rise in the value of the land since1960–the observation in an earlier case that there should be some proximitybetween the date of notice for acquisition and that of actual acquisition is tobe taken into consideration while determining the compensation.

Bangladeshvs Basharatullah 42 DLR (AD) 91.

Section 14A–

Sectionimposes an express bar on the entertainment of any suit or appeal against anyorder or action taken under the Act. An appeal pending against such an actionor order shall abate.

Nur Muhammad vs Mainuddin 39 DLR (AD) 1.

Section 21–

Unless theproperty is requisitioned under section 3 of the Act it cannot be acquiredwithout the proposal of the Deputy Commissioner–No provision of correction oramendment of the previous Gazette Notification by a subsequent GazetteNotification has been provided therein.

NurjahanBegum vs Government of the People's Republic of Bangladesh and others 51 DLR426.

Employment of Labour (Standing Orders) Act, 1965

Employmentof Labour (Standing Orders) Act [VIII of 1965]

Section 1–

Sonali Bankis a creature of Statute namely, PO 26 of 1972, which has made it a juristicperson. It has its own identity, it functions as per the said statute, so itcannot be said to be an office under the Government.

ManagingDirector, Sonali Bank and 2 others vs Md Jahangir Kabir Mal/ah 48 DLR 395.

Sections2(1) and 6–

Lay–off–Employer'sfinancial inability is covered by the expression "other cause beyond hiscontrol" appearing in section 6 and his right to take action thereundercannot be fettered with limitation.

VirginiaTobacco Co. vs Labour Court 45 DLR 233.

Section 2(1)(b)–

Thedefinition of worker as given in the Employment of Labour (Standing Orders) Acthas not named any employee in its concept. It is a general definition startingwith the person employed in any shop and commercial establishment who is notemployed in any managerial or administrative capacity is a worker. Bank has alreadybeen found to be a commercial establishment and the plaintiff being anassistant cashier was not doing managerial or administrative job, but he wasdoing a clerical work. Therefore the plaintiff can undoubtedly be said to be aworker within the meaning of worker as defined in the Employment of Labour(Standing Orders) Act.

Sonali Bankand another vs Chandon Kumar Nandi 48 DLR 330.

Section 2(d) –

Whether theplaintiffs are workers as defined in labour laws having no remedy in CivilCourt. Let us now see whether the plaintiffs are workers as defined in theLabour Laws so that they may be said to have no remedy in the Civil Court. Thecase reported in 35 DLR 151 relates to some employee of another NationalisedBank, that is, the Sonali Bank. In that case of Criminal Prosecution of aBranch Manager of the said Bank under the provisions of Shops and EstablishmentAct, 1965 the question arose whether such nationalised Banks came under thepurview of the Shops and Establishment Act.

It wasnoticed that among other concerns a banking company and a bank were alsoincluded within the definition, and after elaborate discussion a Division Benchof this Court held that the Bank was a Commercial Establishment. There is noreason why the Janata Bank being a similarly Nationalised Bank should not alsobe tested as a Commercial Establishment as defined in the Shops andEstablishment Act.

It is clearin the light of this definition that the plaintiffs who were employed to doclerical work in the commercial establishment like the Janata Bank fall withinthe definition of worker. The decision reported in 35 DLR 151 does not appearto have been placed from the Bar before his Lordship while deciding the casereported in 39 DLR 167 where it has been held that the employees of the RupaliBank, a similarly Nationalised Bank, are not workers under the said Act. Forobvious reasons I respectfully disagree with the Single Bench decision. 39 DLR167 not followed The plaintiffs are workers. Labour Court is the proper forumfor redress of their grievances. Civil Court has no jurisdiction to entertainthe two suits.

MdShahabuddin vs Janata Bank 41 DLR 94.

Section 2(m) & 2(s)–

In view ofcontinuous service rendered by the respondent–employees to the Bank, being sorequired, their service should be regularised in the Bank service, not in thecategory of permanent employees.

Rupali BankLtd vs Chairman, Second Labour Court, Dhaka 54 DLR 602

Sections 2(m)(s) & 4(2)–

The term"temporary worker" has a connotation which is different from popularand dictionary meaning of the term. Having regard to the language employed inthe sub–section of the Act, a worker in order to be treated as permanent workerneed not require appointment on permanent basis. It will be sufficient if hehas satisfactorily completed the period of probation.

Merementioning of the fact that a job is of temporary nature does not render it tobe of temporary nature or necessarily give rise to inference that work islikely to be finished within limited period. Thus, mere appointment on atemporary basis is not the sole criteria for holding the work as temporary one.

ManagingDirector Rupali Bank vs First Labour Court 46 DLR 143.

Sections 2(t) & 25–

Protectiongiven to an officer of a trade union during pendency of an application forregistration of such union can be enforced by filing of an application undersection 25 of the Act. Otherwise protection given under section 47 A of theOrdinance to an officer of a trade union, application for registration of whichis pending, would be frustrated.

Star AlkaidJute Mills Ltd vs Chairman, 2nd Labour Court and another 49 DLR 537.

Section 2(V)–

Employees ofnationalised Rupali Bank are not workers within the meaning of section 2(V) ofthe Employment of Labour (SO) Act and can, therefore, bring a suit in civilcourt against an order by the Bank terminating their service.

Asstt.General Manager vs N Islam 39 DLR 167.

Section 2(V)–

Worker–definitionof–The employment of employees such as cash staff, godown staff, security staffand managerial staff of the bank cannot be designated as workers within themeaning of the definition of workers, because these classes of employees arenot meant for productive purpose but used as mere aid to production.

DeputyGenaral Manager Rupali Bank Ltd vs Nazrul Islam Patwari 44 DLR406.

Section 2(v)–

The term"worker", contemplates not only a person to be employed in the workfor productive purposes in any commercial or industrial establishment, but alsoembraces a person who on being employed does any skilled, unskilled, manual,technical, trade promotional or clerical work for hire or reward, whether theterm of employment be express or implied.

ManagingDirector, Rupali Bank Limited vs Md Nazrul Islam Patwary and others 48 DLR (AD) 62.

Section 2(V)–

The kind ofworks done by the Pesh Imam, Muazzins, teachers of School and College and staffmembers of Medical Centre and Hospital run by the factory management cannot beequated with the works done by the workers or workmen in the factory.

Amir HossainBhuiya (Md) vs Harisul Haq Bhuiya and others 52 DLR 267.

Section 2(v)(ii)–

In theabsence of establishing by the Management that the worker discharged duties orfunctions of the office of administrative nature or of managerial nature, meredesignation is not sufficient to show that he is not a worker.

ManagingDirector, Contiforms Forms Limited and Peasant Trading Cold Storage (Pvt) Ltdvs Member, Labour Appellate Tribunal, Dhaka and others 50 DLR 476.

Section 2(V)(ii)(8)–

Mere designationis not sufficient to indicate whether a person is a 'worker' or an 'employer',but it is the nature of the work showing the extent of his authority whichdetermines whether he is a worker or employer.

DostaTextile Mills vs SB Nath 40 DLR (AD) 45.

Section 3–

TheCorporation has a right to frame its own Rules concerning the condition ofemployment of workers as provided under the Proviso to section 3 of theAct–Rules not found invalid–Labour Court travelled beyond the pleading of theparty.

Brig Khalequzzamanvs Sk Shahabuddin 42 DLR 293.

Section 3–

Sonali Bankmay have its Service Regulations but will not take it outside the ambit of theEmployment of Labour (Standing Orders)Act, 1965.

ManagingDirector, Sonali Bank and 2 others vs Md Jahangir Kabir Molla 48 DLR 395.

Section 4(2) –

A serviceregulation, even if a statutory one, cannot exclude or supersede the Employmentof Labour (Standing Orders) Act. The FDCmay have its own Service Regulations but it cannot be beyond the ambit ofEmployment of Labour (Standing Orders) Act. If any provision of the ServiceRegulations of the FDC is less favourable to the express provision of, theStanding Orders Act that provision, is void ab initio.

BangladeshFilm Development Corporation, represented by the Managing Director vsChairman, 1st Labour Court and others 49 DLR 396.

Section 5(2)–

If a workerdesires extension of leave he must apply for it before expiry of the leave.

ChittagongTextile Mills vs Labour Court 45DLR159.

Sections 6 and 2(1)–

Lay-offEmployer's financial inability is covered by the expression "other causebeyond his control" appearing in section 6 and his right to take actionthereunder cannot be fettered with limitation.

VirginiaTobacco Co. vs Labour Court 45 DLR 233.

Sections 6(1) and 12–

Labour Courtacted without authority in directing the petitioner to start work in the Millby getting electric supply. There is no law prohibiting employer from retrenchingworker during pendency of labour dispute.

Sultana JuteMills Ltd vs Chairman, Labour Court 42 DLR 340.

Sections 15 & 18(6)–

The Chairmanof the Labour Court acted illegally in not accepting the well–reasoned adviceof the members–In the facts of the case the order of dismissal is modified toone of termination.

Abdus Sattarvs Chairman, Labour Court Chittagong and another 48 DLR 525.

Sections 16 & 17–

Whileawarding punishment the employer ought to have considered the length ofservice and previous record of the employees before issuing orders ofdismissal. Considering their length of service and the circumstances of thecase the order of dismissal of the employees are modified to treat thedismissal as discharge with compensation as provided in law.

Shaukat Alivs Chairman, Labour Court, Khulna and others 44 DLR 410.

Sections 17(3) and 25( d)–

Labour Courthas the power to convert an order of dismissal into one of termination ofservice in appropriate circumstances.

Bank ofCredit and Commerce vs Tajul Islam 45 DLR (AD) 61.

Section 17(3)(b)–

Temporary possessionof goods without knowledge or consent of the person entitled to the possessionamounts to misappropriation.

ZeenatTextile Mills Ltd vs Third Labour Court Dhaka 44 DLR 213.

Section 18–

In a case ofpunishment for the worker, Labour Court Cannot re-open the factual merit andre–assess evidence to disprove findings given by the domestic tribunal.

Adamjee JuteMills Ltd vs Third Labour Court 42 DLR 371.

Section 18–

Dismissal–Dismissalof a worker with retrospective effect is illegal, but not in toto–dismissal islegal prospectively with effect from the date when the order was issued.

ChittagongTextile Mills vs Labour Court 45 DLR 159.

Section 18–

Terminationwith stigma– From the order of termination it appears that the petitioner hasbeen branded to be a 'habitual absentee' i.e. a stigma has been attached whichcalls for opportunity to the petitioner to defend himself. The petitioner hasnot been afforded an opportunity of being heard in the matter and no enquiryhas been held. This is an order of dismissal in the garb of termination and, assuch, the same is declared to have been passed without lawful authority and thepetitioner be re–instated in service at once.

Modares Miahvs The Chairman. 1st Labour Court 44 DLR 165.

Section 18–

Judgement bydomestic tribunal– Extent of Labour Court's jurisdiction over such judgment–The finding of the domestic tribunal in the present case is not contrary toevidence or perverse and, as such, it cannot be interfered with by the LabourCourt. This is not a case of no evidence but a case · of improper assessment ofevidence on record. It is not the function of the Labour Court to make reassessmentof evidence recorded by the Tribunal.

ZeenatTextile Mills Ltd. vs Chairman, Third Labour Court Dhaka 44 DLR 213.

Section 18–

Domesticenquiry–Plea for fresh enquiry–Such enquiry was demanded after examination ofwitnesses and the order of dismissal on the contention that the enquiry was notfair. If the employees had any doubt about the fairness of the enquiry theyshould have raised it at the initial stage and before the enquiry committeeconcluded its proceeding. This having not been done the contention is nottenable.

Shaukat Alivs Chairman, Labour Court, KhuIna and others 44 DLR 410.

Section 18(1)–

Labour Courtis not a Court of appeal, but it can interfere only when the Inquiry Officer orthe Inquiry Committee, 1;1s the case may be, acts unfairly and against theprinciples of natural justice.

The LabourCourt can only interfere with the finding of the Inquiry Officer or InquiryCommittee if it is found that inquiry was held unfairly, with bad faith,without complying with the principles of natural justice and without followingthe procedure laid down in section 18 of the Employment of Labour (StandingOrders, Act.

Nurul AminChowdhury vs Chairman, Second Labour Court 42 DLR 217.

Section 18(2)–

Thecontinued suspension of the respondent No. 2 beyond 60 days from 19–8– 1982 isillegal in view of section 18(2) of the Act.

The totalperiod of suspension that can be passed is 67 days, 60 days for purposes ofenquiry and only 7 days as a measure of punishment.

Thepetitioner–Corporation is not authorised by law to take action against therespondent No. 2 at stages in pursuance of the Inquiry Report–It has to takeaction only once against the delinquent worker–The Corporation cannot continuethe order of suspension ad infinitum though it is entitled to issue a freshorder of suspension.

Secretary,BJC others vs Chairman, 2nd Labour Court 41 DLR 265.

Section 18(4)(a)–

Thesuspended worker will be entitled to the subsistence allowance under theproviso to sub–section (2) of section 17.

SecretaryBJC vs Chairman, Second Labour Court 41 DLR 265.

Section 18(5)–

If aninquiry is held at the back of a delinquent or without notifying thedelinquent, it cannot be found that the inquiry was conducted in accordancewith the provisions of section 18 of the Employment of Labour (Standing Orders)Act– Labour Court's finding is illegal.

Nurul AminChowdhury vs Chairman, Second Labour Court, Dhaka 42 DLR 217.

Section 18(6)–

Non–considerationof previous records, effect of–Non–consideration of the previous record of theworker is no ground to strike down the order of his dismissal, but a lesserpunishment may be given and, accordingly, the order is modified to the extentthat the worker's dismissal be treated as discharge from service.

Adamjee JuteMills Ltd vs Chairman, Third Labour Court 42 DLR 371.

Section 18(6)–

It is purelya matter of discretion of the employer to take into consideration previousgood services of an employee before awarding him punishment.

SerajulIslam vs Bangladesh 45 DLR (AD) 100.

Section 18(6)–

Enquiryreport of the enquiry officer having not been furnished along with the secondshow cause notice to the petitioner and his previous record of service havingnot been taken into consideration before awarding the punishment of dismissalfrom service, the punishment is illegal.

Mostafa Miahvs Chairman, First Labour Court. 46 DLR 373.

Section 19–

Permanentworker–right to terminate his service by one month's notice and 14 days' noticein the case of other employees.

Belal Rahmanvs PJ Industries 39 DLR 239.

Section 19–

Employer canwaive the period of notice and acceptance of resignation and release the workerbefore one month.

Belal Rahmanvs PJ Industries 39 DLR 239.

Section 19–

Termination,validity of– There is nothing to indicate that the Assistant General Managerexercised any delegated authority or communicated order passed by any superiorofficer who was the appointing authority of the employee. The courts belowstruck down the order as being without jurisdiction which called for nointerference.

Rupali BankLtd vs Nazrul Islam Patwari 44 DLR 406.

Section 19–

Departmentalproceeding was initiated against the employee but the same was subequentlydropped and a simple order of termination containing no charge or stigma issued–The order was valid.

ManagingDirector, Sonali Bank and 2 others vs Md Jahangir Kabir Molla 48 DLR 395.

Sections 19 & 25–

Therespondent though a worker his civil suit is maintainable as the proviso tosection 25(1) does not provide him any scope for redress as the order oftermination was not passed for trade union activity or for depriving him ofbenefits specified under section 19.

ManagingDirector, Rupali Bank Limited vs Md Nazrul Islam Patwary and others 48 DLR (AD)62.

Sections 19 & 25–

When fact oftermination of service has not been brought home by either side the question oftermination benefit does not arise.

ManagingDirector United Hosiery Mills vs Second Labour Court 46 DLR 445.

Sections 19 and 25–

Theplaintiff was neither terminated under section 19 of the Act nor was he anofficer of a registered trade union. As such, the doors of the Labour Courtwere not open to him to vindicate his grievance under section 25 of the Actagainst his termination. The relief sought for in the suit could not be prayedbefore the Labour Court.

Uttara BankLtd vs Syed Abidur Reza and ors 56 DLR 461.

Sections 19 and 25(1)(d)–

"Termination"is a recognised method of dispensing with the services of a worker by anemployer after fulfilling certain conditions, such as, by providing terminationbenefits– The wide powers with which the Labour Court is vested under section25(l)(d) also includes the power to order termination with benefits.

Haider AliMollah vs Chairmam, Second Labour Court 42 DLR 200.

Sections 19 and 25(1)(d)–

Discretionto pass an order under section 25 (l)(d) rests with the Labour Court–Writ Courtcannot substitute its own discretion or its concept of propriety for thediscretion .or the concept of propriety of the Labour Court–It can only examinethe legality or otherwise of the impugned order passed by the Labour Court.

Haider AliMollah vs Chairman, Second Labour Court 42 DLR 200.

Section 19(1)–

From thedefinition of 'wages' in the Act of 1936 and in the Act of 1965 it is quiteclear that termination benefit as provided in section 19 of the Act of 1965 isalso 'wages'.

ManagingDirector, Contiforms Forms Limited and PeasantTrading Cold Storage (Pvt) Ltd vsMember, Labour Appellate Tribunal, Dhaka and others 50 DLR 476.

Section 19(1) & 25(d)–

Terminationof worker–Termination, when to take effectLabour Court has given no reasonsfor treating the date of its judgement as the date of termination of service ofthe worker. It is not correct to say that the language of section 25( d) of theAct and the facts and circumstances of the case warrant treating the date ofjudgement of the Labour Court as the date of termination of his service. LabourCourt's order treating the date of its judgement as the date of termination iswithout lawful authority.

ChittagongTextile Mills Ltd. vs The Chairman, Labour Court Chittagong and another 43 DLR471.

Section 25–

An aggrievedindividual worker including a dismissed or discharged or retrenched or laid–offor otherwise removed person shall have to submit his grievance to his employerwithin 15 days of the occurrence of the cause of such action.

Karim JuteMill vs Chairman, Second Labour Court 42 DLR 255.

Section 25–

The workeris to send his grievance notice by registered post within 15 days of theoccurrence.

Abul Kalamvs Chairman 38 DLR 399.

Section 25–

Whetherretirement from service is a grievance coming within the purview of section 25of the Act–Since the retirement, right or wrong, is not covered under any ofthe provisions of the Act as grievance; the workers so retired cannot invokethe jurisdiction of the Labour Court.

MessrsAdamjee Jute Mills Ltd vs The Chairman, Third Labour Court 42 DLR 275.

Section 25–

In view ofthe provisions of section 29 (2) of the Limitation Act, section 14 of the saidAct is applicable to a special law like the Employment of Labour (StandingOrders) Act.

Secretary,BJC & others vs Chairman, Second Labour Court. 41 DLR 265.

Section 25–

Suspension–Grievancenotice –Section 25 of the Act does not contemplate filing of grievance noticeafter 15 days of the order of suspension of an employee on the plea that causeof action in case of suspension is recurring one.

GM, KohinoorSpinning Mills Ltd vs Chairman, 1st Labour Court, Dhaka 44 DLR 344.

Section 25–

Additionalwritten statement – Limitation– Labour Court acted in excess of its jurisdictionby relying upon the additional written statement filed beyond the period oflimitation giving rise to new cause of action.

GM, KohinoorSpinning Mills Ltd. vs Chairman, 1st Labour Court, Dhaka 44 DLR 344.

Section 25–

When LabourCourt does not find any procedural defect in the domestic tribunal's enquiryinto a case, Labour Court has no authority to assume its jurisdiction to setaside the tribunal's conclusion. Labour Court cannot act as a court of appealand reassess the evidence so as to arrive at finding of its own.

GM, KohinoorSpinning Mills Ltd. vs Chairman, 1st Labour Court, Dhaka 44 DLR 344 .

Section 25–

Terminationof bank employee –Civil court jurisdiction– There is no specific provisioneither in the President's Order in the Bank (Employees) Service Regulationagainst termination of employment or imposition of penalty before any court.There is therefore no question of inconsistency of any provision of theRegulation with section 25 of the Standing Orders Act as to forum for judicialredress. This section must be read to have been made applicable in respect ofany liability created under the service regulations. The Courts below thereforefell into an error of law in not holding that the suits were impliedly barredand the civil Court had no jurisdiction to entertain the same.

Pubali BankLimited vs Mansur Ali Akanda and others 44 DLR

Section 25–

Since theworker did not send his grievance petition to the employer within 15 days ofhis alleged removal, he cannot come before the Labour Court also under section25 of the Act.

NETC vsLabour Court 45 DLR 357.

Section 25–

Where theLabour Court finds that an order of dismissal from service cannot be maintainedon facts and there is no procedural defect in holding enquiry by the domestictribunal, it can convert the order of dismissal to one of termination. Suchorder cannot be declared as made without jurisdiction merely on the ground ofstigma unless the proceeding of the Domestic Tribunal is vitiated by proceduraldefect.

Anil KrishnaMondal vs Chairman 45 DLR 367.

Section 25–

Labour Courthas been set up to do justice to the worker–complainants and not to throw outthe cases filed by the workers on technical grounds. The Labour Court havingfound the order of dismissal of the petitioner not tenable in law had no optionbut to do justice to the petitioner.

Azizul Huq(Md) vs Chairman Labour Court Khulna and others 48 DLR 527.

Section 25–

For notavailing of the forum as provided in section 25 of the Act of 1965 a worker is notprecluded 'from realising the termination benefits by filing an applicationunder section 15(2) of the Act of 1936.

ManagingDirector, Contiforms Forms Limited and Peasant Trading Cold Storage(Pvt) Ltd vsMember, Labour Appellate Tribunal, Dhaka and others 50 DLR 476.

Section 2–

The objectsand purpose of the Payment of Wages Act and the objects and purpose of theEmployment of Labour (SO) Act and Industrial Relations Ordinance are not inpari materia. Their fundamentals are different in nature. A person cannot seekrelief under the Payment of Wages Act for a claim arising out of the StandingOrders Act as that will cause anomaly. Once it is allowed the aggrieved personsmostly will come under section 15(2) of the Payment of Wages Act to avail of alarger period of limitation.

Shaw Wallacevs Bangladesh Limited Tofazzal Hossain son of late Abdul Kader and others 50DLR 22.

Section 2–

Since theoverriding responsibility of the Labour Court is to decide the complaint caseafter giving notice and hearing to the parties it had no option but to setaside the order of rejection for non–appearance of the complainant who was ableto satisfy the La\lpur Court as to the cause of his non–appearance. Deciding acase means deciding it on merit and not by passing a default order.

CrescentJute Mills Company Ltd vs Chairman, Labour Court and anr 49 DLR 201.

Section 2–

In theabsence of compliance with the statutory requirements under section 25 of theAct of 1965 no application made under section 34 of the Ordinance can beconverted to one under the Act and as such there is no scope for remitting thecase to the Court below.

Sabita Duttavs Manager, Cinema Palace, Chittagong and another 51 DLR (AD) 215.

Section 2–

Thepetitioner's case against termination of his service having remained pendingfor disposal, the order directing him to vacate his residential accommodationis without lawful authority.

Abdur Rahim(Md) vs Bangladesh Sarak Paribahan Corporation 51 DLR 339.

Section 2–

Thenon–consideration by the petitioner that the respondents were its permanentworkers and entitled to get benefits of as such workers is a continuous wrongand as such a fresh limitation began to run at every time when the petitionercontinued with the wrong.

Rupali BankLtd vs Chairman 2nd Labour Court Dhaka &another 52 DLR 603.

Sections 25 & 19–

When fact oftermination of service has not been brought home by either side the question oftermination benefit does not arise.

MD, UnitedHosiery Mills vs Second Labour Court 46 DLR445.

Sections 25 and 26–

Jurisdictionof the Labour Court under section 26 is not attracted unless an accused refusesor fails to comply with an order passed under section 25. The petitioner didnot refuse or fail to comply with the order under section 25.

SekanderMian vs Chairman, 1st Labour Court 41 DLR 203.

Sections 25 & 26–

Unless the amounts of claim are ascertainedwhich can only be done on an application under section 34 of the IndustrialRelations Ordinance,.1969, the complainants can not resort to criminalproceedings for alleged noncompliance.

Abdul HamidKhan vs Md Abul Kashem 55 DLR 231.

Sections 25 and 27–

Labour Courtcannot act as an appellate Court in deciding cases by giving a finding of itsown on re–assessment of evidence. In the present cases the Labour Court actedbeyond jurisdiction in re–assessing the evidence examined by a domestic enquirycommittee and hence it is without lawful autority.

In view ofthe fact that the domestic enquiry was held in accordance with the provisionsof the Act, the decision of the Labour Court that the charges against thedelinquent employees have not been established is without lawful authority.

Dhaka Dyeing& Manufacturing Company Ltd vs Chairman, Second Labour Court Dhaka 42DLR 278.

Section 25(1)–

The petitionfiled by hand could not be considered to be a grievance petition. At best, thesame could be considered as an appeal or a petition for review of the order ofdismissal passed by the respondent No. l but by no means a grievance petitionas meant by section 25 of the Employment Of Labour (Standing Orders) Act.

Sultan Ahmedvs. Chairman, Divisional Labour Court, and others 49 DLR 215.

Section 25(1)(a)–

It is wellsettled that even in a domestic inquiry witnesses cannot be examined behind theback of the worker without informing him regarding the place, date and time forexamination of witnesses and thereby giving him an opportunity to cross–examinethem if he so wants.

EasternPhamaceuticals Ltd vs Labour Court 43 DLR 223.

Section 25(1)(a)–

Grievanceprocedure– In a case of admitted service of grievance petition by the workerwithin the specified time, the formality of sending the same by registered postshould not be interpreted in a way detrimental to the interest of the worker.

BangladeshRoad Transport Corporation vs Md Esken Mallick and another 56 DLR (AD) 125.

Section 25(1)(b)–

Submissionof grievance petition within 15 days must be fulfilled first and then complaintpetition to the Labour Court lies.

Karim JuteMills vs Chairman, Second Labour Court 42 DLR 255.

Section 25(1)(b)–

Deposit oftax and fine payable by the employee did not absolve him of the liability ofdisciplinary action for misconduct, although the employer did not incur anymonetary loss. Labour Court acted without lawful authority in holding that theemployee was punished twice for the same offence by dismissing him from servicefor misconduct.

BRTC vsChairman, First Labour Court 46 DLR 483.

Section 25(1)(b)–

This Courtcan as well for doing complete justice in any cause treat the application undersection 25(1)(b) as an application under the Payment of Wages Act forrealisation of the benefits consequent upon retirement of the deceased worker.

BWDB andothers vs Chairman, Divisional Labour Court, Khulna and others 55 DLR (AD) 5.

Section 25(1)(b)–

Any employeris always free to take recourse to a simple order of termination in order toavoid the complex disciplinary action provided the intended action is not takenwith a view to victimising the worker for trade union activities.

KarnaphuliFertiliser Co Ltd vs Chairman, First Labour Court, and another 56 DLR 502

Section 25(1)(b)–

Thepetitioner firstly submitted to the jurisdiction of Labour Court, Rajshahi andfiled written statement to contest the complaint case and then raised thequestion of jurisdiction by filing an application which was ultimately decidedin favour of the respondent No. 2 by order dated 31–1–1998. That order havingnot been challenged the petitioners questioned the jurisdiction in a proceedingunder Article 102 of the Constitution as they filed written statement tocontest the case.

Chairman,Uttara Management Ltd vs Labour Court, Rajshahi 56 DLR 627.

Section 25(1)(d)–

Discretionto pass an order under section 25(l)(d) rests with the Labour Court–Writ Courtcannot substitute its own discretion or its concept of propriety of thediscretion or the concept of propriety of the Labour Court–It can only examinethe legality or otherwise of the impugned order passed by the Labour Court.

Haider AliMollah vs Chairman, Second Labour Court 42 DLR 200.

Section 25(1)(d)–

Whether aLabour Court is empowered to re–instate a dismissed workerWhether a LabourCourt which has sufficient materials to draw a conclusion that it would beinappropriate to make an order for re–instatement can pass an order oftermination of service instead, though the Labour Court had found that theorder of dismissal was illegal.

ShahjahanAli vs Chairman, Labour Court 40 DLR 132.

Section 25(1)(d)–

Labour Courtdid not act illegally or in excess of its authority in converting the order ofdismissal into an order of temination simpliciter.

Nurul Islam(Md) vs Chairman, 1st Labour Court, and another 46 DLR 661.

Section 25(1)(d)–

The power ofthe Labour Court to pass such orders as may appear to it to be just and properis limited by the general provision that a worker dismissed lawfully cannot beimposed on the employer on compassionate ground or on the ground of severity ofpenalty.

MaqbularRahman Jute Mills Limited vs Chairman Labour Court and another 48 DLR 566.

Sections 25(d) & 19(1)–

Terminationof worker–Termination when to take effectLabour Court has given no reasons fortreating the date of its judgement as the date of termination of service of theworker. It is not correct to say that the language of section 25( d) of the Actand the facts and circumstances of the case warrant treating the date ofjudgement of the Labour Court as the date of termination of his service. LabourCourt's order treating the date of its judgement as the date of termination iswithout lawful authority.

ChittagongTextile Mills Ltd vs The Chairman, Labour Court Chittagong and another 43 DLR471.

Section 26–

After ageneral order conferring termination benefits upon a workman is passed by aLabour Court the court has no jurisdiction to determine the quantum of thebenefits under section 26.

We do notexpress any opinion as to the remedy of respondent No. 2 with regard to hisentitlement to the allegedly balanced sum of Taka 546571. He may take recourseto such remedies as he may be advised, but we are definitely of the opinionthat after the Labour Court passes general order conferring terminationbenefits upon a workman, the Labour Court has no jurisdiction to determine thequantum under section 26 of the Employment of Labour (Standing Orders) Act,1965.

Labour Courtcan punish an offender only for refusal or failure to comply with a definiteorder as the earlier order was for an unascertained sum the Court'sjurisdiction under section 26 could not be invoked particularly as there wasneither any refusal nor failure to comply with the order of the Labour Court.

The LabourCourt can punish an offender only for refusal or . failure to comply with adefinite order and not for refusal or failure to comply with an indefiniteorder. If the earlier judgment was for an ascertained sum, then the respondentNo. 2 could have invoked the jurisdiction of the Labour Court under section 26,but for an unascertained sum the Labour Court simply has no jurisdiction toproceed against the accused–petitioner, particularly when there is neither anyrefusal nor any failure to comply with the order of the Labour Court.

SekanderMiah vs Chairman, 1st Labour Court 41 DLR 203.

Section 26–

Labour Courtwas not constituted under Code of Criminal Procedure– There is no provision forappeal or revision against any order passed under section 26 of the Employmentof Labour (Standing Orders) Act.

JagodishChandra Datta vs MH Azad 41 DLR 257.

Enemy Property (Continuance of Emergency Provision) Ordinance, 1969

EnemyProperty (Continuance of Emergency Provision) Ordinance [I of 1969]

EnemyProperty (Continuance of Emergency Provisions) Ordinance I of 1969–(Continuance of Emergency Provisions) (Repeal) Ordinance–Repeal Act XLV of1974– Ordinance 93 of 1976. All Enemy Property vested in the Custodian isvested in Government.

ThisRepealing Act in section 3(1) provides, inter alia, that all enemy propertyvested in the Custodian of Enemy Property appointed under the Defence ofPakistan Rules as continued in force "shall vest in the government".This section was amended by Ordinance No. 93 of 1976 which provides that theenemy property vested in the government shall be administered, controlled,managed or disposed of by transfer or otherwise by the Government.

With theenactment of the Repealing Act as amended by Ordinance 93 of 1976, we find thatthe property which was 'enemy property' under the Defence of Pakistan Rules hasbecome 'vested property' and that the Government got all powers to administer,control and dispose of it by transfer or otherwise.

PriyatoshTalukder vs Asstt. Custodian 39 DLR (AD) 178.

Bythe amendment of section 3 of Act No. 45 of 1974 the entire complexion of enemyproperty was changed and power was given for disposal or transfer to thegovernment vide section 2 of Ordinance No. 93of1976.

Thelegislative process has undergone change from "preservation" of EnemyProperty to administration and disposal of the said Property under Order No. 93of 1976.

Governmenthaving stepped into the shoes of the Custodian by PO No. 29of1972 and Act No.45 of 1974 cannot be heard to say that it has no power to transfer the propertyin question. The Custodian has no claim to such property.

In 1976 theGovernment became the sole authority and got power of disposal and transfer byOrder No. 93 of 1976.

RahimaAkhter vs AK Bose 40 DLR (AD) 23.

Section 2–

Since thelaw of enemy property itself died with the repeal of Ordinance No. 1 of 1969 on23–3–1974 no further Vested Property case can be started thereafter on thebasis of the law which is already dead.

Aroti RaniPaul vs Sudarshan Kumar Paul and others 56 DLR (AD) 73.

Section 3–

OrdinanceNo. 1 of 1969 w315 repealed by Ordinance No. 4of1974. The Enemy Property vestedin the Custodian has been vested in the Government by repeal of rule 182 ofDefence of Pakistan Rules by Ordinance No. 4 of 1974.

RahimaAkhter vs AK Bose 40 DLR (AD) 23.

Section 3–

Since thelaw on enemy property itself died with the repeal of Ordinance No. I of 1969 on23–3–74, no further vested property case can be started thereafter on the basisof the law which is already dead.

Laxmi KantaRoy vs Upozila Nirbahi Officer 46 DLR 136.

Section 3(1) Clause 4(1)–

VestedProperty –Execution of document in an Exchange case. After a deed ofsettlement was executed by a competent officer of the Government whether itcould take the plea that the officer had acted without its authority–Under theprovisions of Act XLV of 1974 a vested property can be transferred by theGovernment or by such officer as the Government may direct. The Governmenthaving directed the ADC (Rev). to take necessary action in the matter and inview of circulars on the subject, there is no room for doubt that the ADC wasduly authorised to execute and register the deed of settlement. The ordersetting aside the deed is therefore without lawful authority.

Muzaffar Alivs Bangladesh 43 DLR (AD) 137.

Enemy Property (Lands and Buildings) Administration and Disposal Order, 1966

EnemyProperty (Lands and Buildings) Administration and Disposal Order, 1966

Section 4–

Under thissection the lessee was not entitled to hold over after expiry of the periodoflease.

Farid Miahvs Kutub uddin 46 DLR (AD) 183.

Section 5–

Thepetitioner having furnished sufficient documents to establish his prima facietitle, even if his title is invalid or bad in law it would be a matter to bedecided by the civil Court. It is for the authority to go to the civil Courtand to get a decision as to title and find whether the petitioner could beevicted by means of notice under section 5 of the Order.

Aftab uddinAhmed vs Bangladesh 46 DLR 59.

Articles 4 & 5–

TheGovernment has no right to oust a co–owner in possession of the disputedproperty without bringing a suit for partition to separate the enemy portionthereof.

Zillul Haqand others vs Maloti Bala Dey & ors 50DLR 367.

Paragraph 5–

After therepeal of Vested and Non–Resident Property Ordinance vide Ordinance No.92 of1976 there was no scope for starting any VP case under the provisions of theaforesaid law afresh and if any proceeding is started for treating a propertyas vested property, under the law that will be absolutely without jurisdiction.

AdditionalDeputy Commissioenr (Revenue) vs Md Mostafa Ali Mridha and others 48 DLR193.

Environment Protection Act, 1995 & Environment Protection Rules, 1997

EnvironmentProtection Act [l of 1995]

Section 4–

Both theConstitution of Bangladesh and the environmental laws enjoined the Governmentfunctionaries to take adequate measures to prevent environmental pollution.Articles 31 and 32 guarantee a right to life. This expression 'life' does notmean merely an elementary life or sub–human life but connotes the life of thegreatest creation of the Lord–A right to a decent and healthy way of life in ahygienic condition–It also means a qualitative life free from environmentalhazards.

Dr MohiuddinFarooque, (BELA) vs Bangladesh & others 55 DLR 69.

EnvironmentProtection Rules, 1997

Rule 5–

Proviso tosub-section 3 of section 4 of the Paribesh Ain has made it mandatory upon theDirector General to give written notice to the owner of the industry–factoryconcerned giving him chance to take necessary step to rectify the environmentalhazard.

Abu Jafar MdNurul Islam vs DG, Department of Environment and others 56 DLR 1.

Essential Commodities Act, 1957 & Establishment Manual, 1980 & Estates Manual (Government) 1958

EssentialCommodities Act [III of 1957]

Section 3–

Once theperiod of licence is over the Government may consider as to what item of clothsare to be permitted to trade by the licensee and the Government has vestedpower to regulate the distribution of any essential commodity under section 3of the Essential Commodities Act, 1956. The act of the Government in the instantcase is not refusal to renew licence. This is purely a case of restriction ofcertain items as put while they were submitted for renewal of the licence inthe garb of a new licence.

Abdul Gani(Md) and others vs Deputy Commissioner and others 46 DLR 688.

EstablishmentManual, 1980

Abdul Hakimvs Bangladesh & others 50 DLR 137.

EstatesManual (Government) 1958

Rules 54 and 63–

As theappellant was a government servant and not a bonafide cultivator, he was notentitled to get khas mahal land.

Abdul Khaleqvs Bangladesh 40 DLR 21.

Evidence Act, 1872 [Section 1-30]

Evidence Act[I of 1872]

Section 1–

There is adistinguishing feature between the evidence before the Court in a judicialproceeding and before any other person not being a Court and not dealing with ajudicial proceeding.

Ayub Ali vs Bangladesh46 DLR 191.

Section 3–

When a factalready stands proved according to the requirements of section 3 of theEvidence Act and there being no particular method specified for proving a factany demand to require a higher standard of proof is an error of law.

Md ShahadatHossain vs Khohiladdi Shaikh 37DLR126.

Section 3–

'Proved'–Themeaning of the word 'proved' explained.

Theexpression "Proved" as defined in section 3 of the Evidence Actdenotes either of the two conditions - (l) when the existence of a thing is soprobable that a prudent man would assume its existence under the circumstances.Thus a fact may be proved by direct evidence when the fact is attested bywitness, things or documents, or it may be proved by indirect or circumstantialevidence by witness, things or documents which the law deems sufficientlyproximate to the principal fact. This is not evidence direct to the point inissue but evidence of various facts other than the fact in issue which are soassociated with the fact in issue that taken together they form a chain ofcircumstances indicating that the main fact exists.

There is noparticular mode of proving a fact to the exclusion of all other modes unlessthere is a law requiring a particular mode of proof.

Md ShahadatHossain vs Kohiladdi 37 DLR 126.

Section 3–

Nowhere ithas been specifically laid down that a fact to be proved necessarily requiresevidence by witness.

Abdul Mannanvs Abdul Aziz 46 DLR 477.

Section 3–

Benefit ofdoubt to the accused would be available provided there is supportive evidenceon record. For creating doubt or granting benefit of doubt, the evidence is tobe such which may lead to such doubt. The law would fail to protect thecommunity, if fanciful possibilities are admitted, thus, deflecting the courseof justice.

Al-Amin and5 others vs State 51 DLR 154.

Section 3–

There is nobar to find an accused guilty on the basis of testimonies of police personnelsif their testimonies appear to be reliable.

Nizam Hazarivs State 53 DLR 475.

Section 3–

There is noauthority of law to suggest that if a part of the evidence of a case isdisbelieved, the remaining part cannot be believed without independentcorroboration, particularly when it is supported by the attending circumstancesof the case.

Hazrat Khan@ Hazrat Ali Khan vs State 54 DLR 636.

Section 3–

If it isproved that the deceased was last seen alive in the company of the accused inthe absence of any other reasonable explanation as to the safe departure of thedeceased from the · company of the appellant no conclusion other than the guiltof the accused can be drawn.

Bhola vsState 55 DLR 36.

Section 3–

Theconfession of co-accused can be considered to lend support to the otherevidence, if any, but in this case there is no other evidence so far appellantIdris is concerned other than the confessional statement of the co–accused.Therefore the conviction of Idris is based on no evidence and is liable to beset aside.

State vsRajiqul Islam 55 DLR 61.

Section 3–

Circumstantialevidence may be and frequently is more cogent than the evidence ofeye–witnesses. It is not difficult to produce false evidence of eye–witnesses.It is, on the other hand, extremely difficult to produce circumstantialevidence of a convincing character and therefore, circumstantial evidence, ifconvincing, is more cogent than the evidences of eyewitnesses.

State vsMoslem 55 DLR 116.

Section 3–

Although allquestions in a civil case are to be determined on preponderance of probability,an allegation of criminal nature in a civil case is to be proved with a higherdegree of probability.

Islami Bankand others vs Dewan Md Yusuf 55 DLR 624.

Section 3–

There shouldnot be exaggerated devotion to the rule of benefit of doubt at the expense ofsocial defence and course of justice cannot be allowed to be deflected on theconcept of the rule of benefit of doubt. It is true to say with Viscount Simonsthat "miscarriage of justice" may arise from the acquittal of theguilty no less than the conviction of the innocent.

State vs MdAwal Fakir 56 DLR 647.

Sections 3 & 5–

Evaluationof evidence of witnesses and conclusion from facts–On the face of directevidence of four eye–witnesses, the High Court Division acted wrongly inacquitting the principal accused by entertaining doubts in mind as to theplace, time and occurrence.

State vsMohammad Kha 42 DLR (AD) 192.

Sections 3, 5 & 8–

Ordinarilyan accused has no obligation to account for the death for which he was placedon trial, but the murder having taken place while the accused was living withhis deceased wife in the same house, he was under an obligation to explain howhis wife had met with her death.

Abul KalamMollah vs State 51 DLR 544.

Sections 3 & 30–

Since theconfessional statement is not required to be taken on oath and taken inpresence of a co–accused and not tested by cross–examination it cannot beconsidered as substantive evidence against the co–accused.

Mojibar vs State 51 DLR 507.

Sections 3 and 30–

Confessionalstatement cannot be used against a co–accused without independent corroborativeevidence.

Abu Sayed vsState 53 DLR 559.

Section 5–

Mere placingno reliance upon confessional statement of the accused and non-examination ofthe Magistrate who held TI Parade are no grounds for acquittal where the orderof conviction and sentence is based on other sufficient and reliable legalevidence on record.

Abdul Hashem(Md) @ Bachchu Fakir and others vs State 52 DLR (AD) 117.

Section 5–

Calling andtaking away of the victim by the appellant Billal and co-convict Saiful fromhis residence half an hour before his murder, recovery of the body of thevictim, Billal's offer of love and threat to the PW 2 Mokseda, and abscondenceof Billal immediately after the occurrence are circumstances to lead to theconclusion that he abetted the murder.

Billal vsState 52 DLR (AD) 143.

Section 5–

Even in caseof non–examination of the seizure list witness or if the seizure list witnessesdo not speak in terms of the prosecution case, the conviction cannot be setaside only for this reason.

Moshfiqul Islam alias Bilu vs State 52 DLR 593.

Section 5–

It isunfortunate that for not seizing the lungi of PW I the positive testimony ofthis witness and other witnesses who spoke about the presence of PW I in theoccurrence have been discarded.

"Evidencefalse in part is false in entirety" – As a matter of fact this maxim isnot supported by any authority and has got no relevance in the present time.

Mahmudul Islam alias Ratan vs State 53 DLR (AD) 1.

Section 5–

When a wifemet with an unnatural death while in custody of the husband and also while inhis house the husband is to explain under what circumstance the wife met withher death.

Ilias Hussain (Md) vs State 54 DLR (AD) 78.

Section 5–

Mere relationshipby itself cannot be a ground for rejecting testimony of a witness unless it isshown that the witness was biased and resorted to falsehood.

Nure Alam and others vs State 54 DLR 242.

Section 5–

There is noreason to hold that the defence has been prejudiced for non-examination of theinvestigation officer, although non-examination of the investigation officer ina criminal case is usually viewed with disapproval.

Karam Ali vs State 54 DLR 378.

Section 5–

Non-examinationof independent witnesses, particularly some of the neighbors, raised apresumption against the prosecution to the effect that had they been examined,they would not have supported the prosecution case.

Nepoleon Khondker alias Lepu and another vs State 54 DLR 386.

Section 5–

In thecontext of the existing enmity between the parties, it is wholly unsafe to relyon the uncorroborated testimony of informant.

Altaf Hossain and ors vs State 54 DLR 464.

Section 5–

A closerelative who is a material witness cannot be regarded as an interested witness.The term "interestedness" postulates that the witness must have somedirect interest in having the accused somehow or the other connected for someanimus or some other reasons.

State vs Moslem 55 DLR 116.

Section 5–

The murderhaving taken place where the accused person was living with his wife in thesame house he was under an obligation to explain how his wife had met with herdeath. In the absence of any explanation coming from his side it seems noneother than the husband was responsible for causing death in question.

Dulal Mia (Md) vs State 56 DLR 65.

Section 5–

If onconsideration of the entire evidence and materials on record it appears to theCourt that the prosecution case is doubtful, the benefit of doubt must be givento the accused and he should be acquitted of the offence charged.

Shahidul Islam (Md) alias HM Shahid vs State 56 DLR 35.

Section 5–

Discrepancyhas to be distinguished from contradiction. Whereas contradiction in thestatement of the witness is fatal for the case, minor discrepancy or variancein evidence will not make the prosecution case doubtful.

Shibu Pada Acharjee vs State 56 DLR 285.

Section 8–

Thedeceptive conduct of accused petitioner to turn into a fugitive by jumping thebail is a clear indication of his guilty conscience.

Babar Hossain vs State 2 DLR 326.

Section 8–

In view ofthe evidence as to motive of the condemned prisoner, his previous attempt toassault the victim, comes within the purview of section 8 of the Evidence Actand this said conduct is relevant for determination of the issue of the case.

State vs Md Khosbar Ali 52 DLR 633.

Section 8–

Unless thecourt is told what exact words were used by the accused persons it cannot acton the inference supplied by the witnesses from what they have heard or notheard.

Abul Khair and another vs State 55 DLR 437.

Section 8–

Accusedremained absconding with clear guilty knowledge about his overt act in theoccurrence resulting in the murder and as such his absconsion will createadverse opinion against him.

Zakir Hossain and another vs State 55 DLR 137.

Section 8–

Abscondenceby itself does not prove any offence against any person unless such abscondenceis substantiated by evidence in favour of his guilt incompatible with his pleaof innocence.

Zahid Hossain @Paltu and others vs State 55 DLR 160.

Section 8–

Abscondenceof the condemned prisoner furnished strong corroboration to prosecution casethat he is the culprit.

State vs Moslem 55 DLR 116.

Section 8–

Absconsionitself is not an incriminating matter inasmuch as even an innocent personimplicated in a serious crime sometimes absconds during the investigation toavoid repression by the police.

Abul Kashem and others vs State 56 DLR 132.

Section 8–

Abscondencesometimes may not be an incriminating circumstance for drawing inference of theguilt of an accused person but, in the case in hand, long abscondence of theaccused–appellant is an important circumstance to fasten him.

Babul Sikder and others vs State represented by the DC 56 DLR 174.

Section 8–

Motive–Motive,if proved, affords a key to scan the evidences of the case in its properperspective and motive proved indicates the high degree of probability andprovides a link in the chain to connect the accused with the offence.

State vs Abdul Hatem 56 DLR 431.

Sections 8 and 9–

Abscondenceof an accused person in some circumstances may not be an incriminatingcircumstance against him in respect of his guilt but long abscondence is animportant circumstance against him and furnishes corroboration of theprosecution case.

State vs Saiful Islam and anr 56 DLR 376.

Sections 8 & 106–

It was notdenied by the appellant that victim Shefali was his wife and living with him inthe same house just before her alleged missing. If that be so, he is under theobligation to explain what has happened to Shefali who was with him before hermissing.

Abdul Majid vs State 55 DLR 486.

Section 9–

Longabscondence and non-submission to the process of the court speaks a volumeagainst the accused persons and clearly suggest their involvement in the crime.Abscondence of the accused persons furnished corroboration of the prosecutioncase and evidence.

Al–Amin and 5 others vs State 51 DLR 154.

Section 9–

The non-holdingof the Test Identification Parade cannot affect the identification of theaccused Shamim Hossain by the victims at the time of trial and the statementmade by the witnesses are the legal and substantive evidence in the eye of law.

Al–Amin and 5 others vs State 51 DLR 154.

Section 9–

It was theduty of appellant to follow the position of the case. No duty was cast uponTribunal to run after a fugitive to post him with day–to–day proceeding againsthim.

Nizam Hazari vs State 53 DLR 475.

Section 9–

Abscondenceof accused is a relevant fact under section 9 of the Evidence Act and unlessaccused explains his conduct abscondence may indicate his guilt.

Nizam Hazari vs State 53 DLR 475.

Section 9–

Abscondenceof an accused cannot be treated to be corroboration of the confessionalstatement of another accused person so as to base thereon conviction of theabsconding accused.

Nizam Hazari vs State 53 DLR 475.

Section 9–

It is thefacts and circumstances of the case which decide whether abscondence is due toany guilty knowledge or to any intention to avoid harassment by police.

Nizam Hazari vs State 53 DLR 475.

Section 13–

Document towhich a person was not a party may be admissible to show assertion of right.

Md Shahadat Hossain vs Kohiladdi Shaikh 37 DLR 126.

Section 13–

Existence ofany right or custom, such as any "transaction" creating anyright–Relevancy of–Section 13 provides that where the question is as to theexistence of any right or custom, certain facts are relevant, such as any 'transaction'by which right or custom in question was created, claimed, modified,recognised, asserted or denied, and 'particular instances' in which the rightor custom was claimed, recognised or asserted.

Hazi Waziullah vs Additional Deputy Commissioner, Noakhali 41 DLR(AD) 97.

Section 13–

A salecertificate is not a title deed but it is only an evidence of title. It is notincumbent upon the auction purchaser or his transferee to prove right topropertyl only by proving the sale certificate–the auction sale can be provedby any other evidence independent of the sale certificate.

Bazlur Rahman vs Sadu Mia 45 DLR 391.

Sections 13 and 43–

Evidentiaryvalue to the previous judgment in Writ Petition No. 682of1980 as to the statusof the petitioner in view of the provisions of section 43 read with section 13of the Evidence Act not accorded–Effect of.

Dr Syed Matiur Rob vs Bangladesh 42 DLR (AD) 126.

Sections 13 and 43–

PreviousJudgment - Admissibility of–Not binding upon the respondent No. 4 and theGovernment as the new issues raised in a review case had no occasion to beconsidered in the previous judgment.

Dr Syed Matiur Rob vs Bangladesh 42 DLR (AD) 126.

Sections 13 and 43–

Whetherjudgment which decreed the suit on a finding that there was an amicablepartition is admissible under sections 13 and 43 of the Evidence Act and may beconsidered as evidence.

Hazi Waziullah vs ADC Revenue 41 DLR (ADJ 97.

Section 17–

'Admission'is no doubt a strong evidence against its maker but it is also open to him toadduce evidence to show that it is not in fact an 'admission' but is the resultof bonafide mistake of fact.

Begum Khodeza Akhter vs Hajera Khatun 37 DLR (ADJ 212.

Section 17–

Admission–Useof–Whether an admission made by a party in plaint, signed and verified by him,may be used as evidence against him in other suits–Whether it is also open tothe party to show that the admission is to be regarded as conclusive evidenceand also to show that it is untrue.

AK Khan vs Basek Khan 40 DLR (AD) 114.

Section 17–

Under theEnglish Law a statement in a pleading sworn, or otherwise adopted by a party,is admissible against him in other actions. In our law of evidence an admissionmade by a party in a plaint is admissible in evidence against him but suchadmission cannot be regarded as conclusive proof and it is open to the party toshow that it is untrue.

AK Khan vs Basek Khan 40 DLR (AD) 114.

Section 17–

Admission byjudgment Adverse finding in the judgment in an earlier suit dismissed on the groundof maintainability cannot operate as res judicata. But the finding therein thatthe defendant was admitted to be a tenant will operate as admission byjudgment.

Haragram Trust Board vs Dr Golam Mortuza Hossain 47 DLR 160.

Section 17–

Stray statementmade without the context does not constitute any admission by defendant onextension of the time for performance.

Saroj Kanta Sarker andothers vs Seraj–ud–Dowla and others 56 DLR 39

Sections 17 & 145–

Admission–Sincethe relationship of landlord and tenant between the plaintiff and the defendantwas never a fact in issue, the application of the defendant dated 12–1–66(unconnected with the relationship) and his deposition in a differentproceeding could not be admitted into evidence as an admission suggesting aninference as to any fact in issue. The alleged admissions were not set out inthe plaint. Admission can be explained and the maker of the same must have anopportunity to explain them.

Abdur Rabban vs Aminul Hoque Sowdagar 43 DLR (AD) 19.

Section 18–

Admission orconcession by lawyer when not binding on his client–s– It does not appear fromthe judgment of the appellate Court below that the respondent's lawyer placedreasoning appearing in the trial Court judgment before the lower appellateCourt. Under such a circumstance Court is not prepared to accept lawyer'sconcession as an admission of facts of abandonment of an issue.

Sajia Khatun vs Amena Khatun 43 DLR (ADJ 206.

Section 19–

Admission byperson whose position must be proved as against party to suit - A qualifiedstatement cannot be used against the maker.

Haque Brothers vs Shamsul Haque 39 DLR290.

Section 23–

The legalposition of a letter written by the appellant with the words "withoutprejudice" is to be understood with reference to section 23 of theEvidence Act which reads as follows:

"Incivil cases no admission is relevant if it is made either upon an expresscondition that evidence of it is not to be given, or under the circumstancesfrom which the court can infer that the parties agreed together that evidenceof it should not be given."

Messrs Haque Brothers (Carbide) Ltd vs Bangladesh Shilpa RinSangstha 37 DLR (AD) 54.

Section 23–

When aletter is written mentioning the expression 'without prejudice,' it means theterms made in it may be accepted by the person written to. If not accepted, thematter ends there. Exception when a letter cannot be referred to for collateralmatters.

Messrs Haque Brother (Carbide) Ltd vs Bangladesh Shilpa RinSangstha 37 DLR (AD) 54.

Section 24–

Extra–judicialconfessions are not usually considered with favour but it does not mean thatsuch a confession coming from a person who has no reason to state falsely andto whom it is made in the circumstances which tend to support his statementshould not be believed.

Syed Ahmed vs Abdul Khaleque and others 51 DLR43.

Section 24–

A convictioncan also be rested on extra–judicial confession subject of course to the factthat such statements are corroborated by other materials on record.

State vs Moslem 55 DLR 116.

Section 24–

Extra–judicialconfession such confession made before a person in authority cannot be reliedupon as evidence without any independent corroboration.

Mobarak Ali Gazi (Md) vs State 55 DLR 325.

Section 25–

The recordof one proceeding is not to be treated as a part of the record of anotherproceeding and the record of each proceeding should be self–contained andcomplete.

State vs Ershad Ali Sikder and others 56 DLR 185.

Section 27–

It is notthe distance by which the place of occurrence is shifted is material but it isthe prosecution case which has been different because of shifting of the placeof occurrence and this has cast a suspicion on the prosecution case.

Abul Kashem and others vs State 56 DLR 132.

Section 27–

If after anexamination of the whole evidence, the Court is of opinion that there is areasonable possibility that the defence put forward by the accused might betrue, such a view reacts on the whole prosecution case. In these circumstances,the accused is entitled to benefit of doubt, not as a matter of grace, but asof right.

Abul Kashem and others vs State 56 DLR 132.

Section 30–

No statementthat contains self-exculpatory matter can amount to confessional statement ifthe exculpatory statement is of some fact which if proved would negative theoffence confessed.

State vs Md Bachchu Miah @ Abdul Mannan and 5 others 51 DLR 355.

Section 30–

Ifconfession falls short of plenary acknowledgment of guilt it would not be aconfession even though the statement contained some incriminating fact.

Jabed Ali (Md) alias Jabed Ali and others vs State 51 DLR 397.

Section 30–

It is veryrisky to rely on the statements of the two confessing accused so as to convictaccused Mohammad Ali as there is absence of any corroborative evidence toidentify Mohammad as Mohammad Ali.

Mohammad Ali vs State 52 DLR 245.

Section 30–

Theconfessional statement of an accused can very well be the basis of convictionprovided the same is true and voluntary.

Hasmat Ali vs State 53 DLR 169.

Section 30–

Prolongedpolice custody immediately before recording of the confessional statement issufficient, if not otherwise properly explained, to render it as involuntary.

Hasmat Ali vs State 53 DLR 169.

Section 30–

Retractionis immaterial, if the confession of the accused is found to be voluntary andtrue.

Meghna Petroleum Marketing Co Ltd and others vs MF Ltd and others53 DLR 368.

Section 30–

Convictioncan be based solely on confession if found true and voluntary, though retractedsubsequently.

Meghna Petroleum Marketing Co Ltd and others vs MF Limited andothers 53 DLR 368.

Section 30–

If thedisputed confession is partly exculpatory and partly inculpatory, it is aconfession in the eye of law.

Meghna Petroleum Marketing Co Ltd and others vs MF Ltd and others53 DLR 368.

Section 30–

Theconviction cannot be based solely on the basis of confessional statement of aco–accused unless it is corroborated by some other independent evidence.

State vs Lieutenant Colonel Syed Farook Rahman 53 DLR 287.

Section 30–

The allegedsolitary confinement was after the recording of the confessional statement anddoes not affect the confession as involuntary.

State vs Lieutenant Colonel Syed Farook Rahman 53 DLR 287.

Section 30–

Confessionof a co-accused cannot by itself be the basis of conviction of anotherco–accused nor even against himself if the same is not substantiated bysatisfactory evidence proving the guilt of its maker.

Zahid Hossain@ Paltu and others vs State 55 DLR 160.

Section 30–

Convictioncan be based on judicial confession if it is established that it is true andvoluntary and is substantiated by other evidences, whether direct orcircumstantial and materials on record.

State vs Moslem 55 DLR 116.

Section 30–

Convictioncan be based on the sole confession of the accused although retractedsubsequently if it is found to be true and voluntary.

Zakir Hossain and another vs State 55 DLR 137.

Section 30–

Convictionof the confessing accused based on a retracted confession even ifuncorroborated cannot be said to be illegal if the court believes that it istrue and voluntary.

State vs Rajiqul Islam 55 DLR 61.

Section 30–

The trialCourt first has to find the confessional statement to be true and voluntary andthen only may place reliance on it.

State vs Rajiqul Islam 55 DLR 61.

Section 30–

The confession of one co-accused cannot beused for corroborating the confession of another co–accused as both are taintedevidence, much more so when they are retracted, for, then the maker himselfrepudiates the correctness of his earlier statements–the confession of aco–accused could not be sustained and further the confession of one co–accusedcould not be said to be corroborated by the confession of another co–accused.

Rezaul Karim (Md) alias Rezaul Alam Rickshawa vs State 55 DLR 382.

Section 30–

Confessionof an accused is not a substantive piece of evidence against the coaccused, sosuch evidence alone without substantive corroborative evidence cannot form thebasis of conviction of a co–accused.

Rezaul Karim (Md) alias Rezaul Alam Rickshawa vs State 55 DLR 382.

Section 30–

Confessionof a co–accused can be taken into consideration and on the strength of thatconfession another co–accused can be convicted provided the said confession iscorroborated by any other evidence, either direct and circumstantial.

State vs Mir Hossain alias Mira and others 56 DLR 124.

Evidence Act, 1872 [Section 115-157]

Evidence Act[I of 1872]

Section 115–

There cannotbe any acquiescence without full knowledge both of the right infringed and ofthe acts which constitute the infringement.

Haque Brothers vs Shamsul Huq 39 DLR290.

Section 115–

Fishery–Leaseof–Appellant society could not show any infringement of statutory rules increating lease of fishery–No question of estoppel arises against Governmenteither quasi or promissory.

Haruni Fishermen's Co–operative Society vs Md Ebadat Ali &others 40 DLR (AD) 266.

Section 115–

Notificationexempting duty and tax–Legality of subsequent notification and question ofestoppel–The notification under section 19 was issued without any conditionexcepting the "terms and conditions" therein. Subsequent notificationtaking away exemptions can have no operation when a right had vested in theimporter. The importer having acted upon the assurance 'given, the Governmentcannot retrace its steps and ask for duty at the rate mentioned in thesubsequent notification. This is clearly a case of estoppel, the well–settledprinciple of promissory estoppel.

Collector of Customs, Chittagong vs A Hannan 42 DLR (AD) 167.

Section 115–

ConsentDecree–Limitation and Estoppel–Plaintiffs elected to give up all the reliefsprayed for in the suit and to limit their prayer, by amendment, to adeclaration that they are the sole legal heirs of the loanee. On understandingwith the plaintiffs, the defendants neither opposed the amendment nor advancedany argument. Since the plaintiffs elected to relinquish all reliefs except theone for saving the suit from limitation and to secure some benefits for them,they are bound by the principle of estoppel and cannot be allowed to argue forthe same reliefs which they had voluntarily abandoned. The decree obtained bythem being based on understanding–and consent of the parties, they are notpermitted to take any appeal from such consent decree. On the same principlethe defendant is also barred from preferring any appeal from the High CourtDivision's judgment.

Parveen Banu vs BHBFC 42 DLR (AD) 234.

Section 115–

Orderingretirement from service after the petitioners rendered 12 years' uninterruptedservice–Admittedly the appointment of petitioners was made by the then Chairmanof the Pourashava, a competent authority and since they joined services on thebasis thereof and rendered 12 years of uninterrupted service, their appointmentcannot now be said to be made irregularly. If any irregularity was thereinitially, it has been cured. After they were confirmed following probation of2 years under the rules their services cannot be terminated arbitrarily in themanner as done by the impugned letter. The grounds of redundancy on which thepetitioners have been retired is a colourable exercise of power. The respondentis therefore directed to reinstate the petitioners and pay them arrear salariesas claimed.

Kanaklata Halder vs Barisal Pourashava 42 DLR 533.

Section 115–

Theequitable principle of estoppel debars the plaintiff from recovering possessionof the suit land from the defendants as they made substantial improvement ofthe land, although before acquiring title by adverse possession.

Renupada Chakraborty vs Kurfanullah & others 46 DLR 532.

Section 115–

Estoppel–the Railway being a part of the Government, the Government or any of itsMinistries is estopped from challenging the validity of the contract concludedwith the plaintiff.

Pronab Kumar Chakraborty vs Bangladesh 46 DLR 268.

Section 115–

Estoppel–Itis true the plaint refers to defendant's petition for some amendment inCommissioner's report relating to the decree in an earlier suit and her seriousobjection to such amendment and yet she has herself assailed the same decree inthe later suit. This actually attracts the principle not of res judicata but ofestoppel which means that a person shall not be allowed to say one thing at onetime and the opposite of it at another time.

Nannu Miah vs Peer Banu Bibi 43 DLR 526.

Section 115–

Estoppel& Acquiescence - Having induced the appellants to permit him to retirefrom service, the respondent cannot be heard to say they had no power torelieve him. Even if the appellants' action was not sanctioned by law, hecannot be the person to make any grievance of it, because he wanted abeneficial order in his favour and the appellants had only obliged him.

Bangladesh Parjatan Corporation vs Mofizur Rahman 46 DLR (AD) 46.

Section 115–

Estoppel–Itbinds heirs–The plaintiff is claiming interest in the property by inheritancethrough his father. If his father had accepted the title of the defendants astenants of the property, his father would be estopped from challenging thetitle of his landlord, and if his father would be estopped the plaintiff wouldalso be bound by the said estoppel as estoppel binds heirs.

Bazlur Rahman vs Sadu Mia 45 DLR 391.

Section 115–

There can beno estoppel where the truth is known to both parties.

Saralat Hossain vs Dr. Islamuddin 45 DLR 724.

Section 115–

Waiver–Estoppel– An officer of the Parjatan Corporation challenging the order retiringher from service before the age of superannuation cannot be said to have waivedher rights and accepted the order just for the reason that she had accepted thegratuity money available to her.

Hasina Mawla vs Parjatan Corporation 45 DLR 112.

Section 115–

Theplaintiff never abandoned his claim of ownership nor the defendants were misledby his prayer for an annual lease so as to change or alter their position totheir detriment and the prayer for temporary lease being obviously underprotest the doctrine of estoppel or waiver has no manner of application in thepresent case.

Dayal Chandra Mondal and others vs Assistant Custodian Vested andNon–Resident Properties (L&B) and others 50 DLR 186.

Section 115–

Before aparty could be barred by the principles of estoppel, waiver and acquiescence itmust be established that the opposite party acted bonafide on the clear,definite and unambiguous representation made by his adversary and that theopposite party has altered position in pursuance thereof.

Moslem Ahmed Sarker (Md) alias Muslim Ahmed vs Abdul Khaleque andothers 50 DLR 616.

Section 115–

Estoppel–Partitionis an equitable relief–plaintiffs having abandoned their claim in respect ofpart of the suit property and the same having been acted upon they are estoppedfrom giving a go by to the compromise to the prejudice of the compromisingdefendants.

Mayurer Nessa and others vs Julekha Khatoon and others 47 DLR 26.

Section 115–

Acceptanceof pensionary benefits under compelling circumstances of the present casecannot be accepted as estoppel.

Jahangir Kabir vs Bangladesh 48 DLR (AD) 156.

Section 115–

It is clearthat unless the defendant's position is changed or altered due to therepresentation made by the plaintiff, there will be no application of thedoctrine of estoppel.

Abdur Rahman vs Tazlul Karim Sikdar and others 48 DLR 361.

Section 115–

When a partyis fully aware of the wording of the arbitration clause, and upto the time ofsubmission of award no objection is raised as to the jurisdiction of thearbitrator the party must be estopped from raising such a plea after thepronouncement of the award.

Bangladesh Water Development Board and others vs ProgatiPrakaushali and another 49 DLR 335.

Section 115–

Promissoryestoppel–Though the tenant failed to pay rent within due date and becametechnically a defaulter, the receipt of Salami, a practice . recognised in theagreement between the parties, can be taken as a promissory estoppel debarringthe landlord to go beyond the terms of the agreement.

Munshi Amiruddin Ahmed vs Begum Shamsun Nahar 48 DLR 21.

Section 115–

TheGovernment could not be allowed to work inconsistently, whimsically andcapriciously to the prejudice of respondent later when the project was approvedby another lawful Government agency at an earlier point of time.

Chairman, Board of Investment and others vs Bay Trawling Limitedand other 51 DLR (AD) 79.

Section 115–

Right ofpre-emption which is a statutory right cannot be given up or taken away orwaived by mere allegation that the pre–emptor was present in thesub–registrar's office at the time of execution and registration of the deed inquestion.

Abdus Sobhan Sheikh vs Kazi Moulana Jabedullah and others 52 DLR289.

Section 115–

Byattestation to deed Exhibit A(2) the plaintiff cannot be held to have knowledgeof the contents of the deed in order to be estopped under section 115 of theEvidence Act.

Wahida Begum vs Tajul Islam 52 DLR 491.

Section 115–

PromissoryEstoppel is a principle evolved by Courts on the principles of equity and toavoid injustice. Where one party by his words and conduct make the other partya clear promise that promise would be binding upon the former who would not beentitled to go back from it.

Government of Bangladesh, & others vs ASM Firojuddin Bhuiyan53 DLR 522.

Section 115–

In a case,as in the instant one transaction by Exhibit B, where transfer is challengedafter lapse of considerable long time then recital in the document being oflong past can legally be considered, in the light of observation in the casereported in AIR 1916 PC 110, genuine and the court may taking the recital alongwith the circumstances go for making its decision as to validity of the deed.

Jitendra Nath Mistry vs Abdul Malek Howlader and ors 54 DLR (AD)106.

Seciton 115–

Mere offerand decline to offer do not constitute any waiver in law in order to act as anestoppel to deny preemption.

Kamaluddin and others vs Md Abdul Aziz and others 56 DLR 485.

Section 116–

PromissoryEstoppel– Promissory estoppel not attracted when a promise would take the shapeof contract by making it enforceable as a contractual obligation.

Sarping Matsajibi vs Bangladesh 39 DLR 78.

Section 116–

Estoppeldeals with questions of fact and not with question of right.

DCCI vs Secretary 39 DLR 145.

Section 116–

Estoppel bycontract or tenant's estoppel–explained. The estoppel as described in thissection is known as tenant's estoppel or estoppel by contract. This estoppel isfounded upon a contract between the tenant and the landlord. It provides thatwhen a person enters into possession of immovable property as a tenant ofanother person then neither he nor anybody claiming through him shall bepermitted during the continuance of the tenancy to deny the landlord's titlehowever defective that title might be. This necessarily implies that in casethe tenant sets up a claim of title in himself he shall first surrenderpossession to the person from whom he had taken it.

Abdus Sattar vs Mahiuddin 38 DLR (AD) 97.

Section 116–

A deviceresorted to by tenant whereby he defaults to pay rent and when sued foreviction, sets up plea of no relationship of tenant and landlord–Such a plea isunavailing when origin of tenancy is proved.

Abdus Sattar vs Mohiuddin 38 DLR (AD) 97.

Section 116–

Section 116is no bar when landlord's title is lost or extinguished–If tenant claims atitle in himself, he must surrender possession to the landlord. If the landlorddetermines the tenancy, but the tenant continues to stay on still bar ofsection 116 will operate.

Abdus Sattar vs Mohiuddin 38 DLR (AD) 97.

Section 116–

Merenon–payment of rent does not snap landlord and tenant relationship.

Abdus Sattar vs Mahiuddin 38 DLR (AD) 97.

Section 116–

On the deathof the tenant the tenancy can be determined by either party, if tenant's heirsstay on they must pay rent or quit.

Abdus Sattar vs Mohiuddin 38 DLR (AD) 97.

Section 116–

Tenant'sEstoppel–Once a tenancy is established the tenant must vacate first and then hecan claim independent title.

Ramisunnessa Bibi and another vs Soleman Molla and others 48 DLR31.

Section 116–

A tenantcannot set up title to a property of which he is a monthly tenant withoutsurrendering possession to his landlord. Haji Kasimuddin Mondal being dead hisheirs

Afroza Bewa and others vs Md Jalaluddin Pramanik 48 DLR (AD) 205.

Section 116–

A tenantcannot set up title to a property of which he is a monthly tenant withoutsurrendering possession to his landlord.

Rabiul Alamand another vs Sree Bidhan Kumar Deb, Advocate 50 DLR 286.

Section 118–

In a case ofcarnal offence the prosecution is to be believed in awarding conviction to theoffender even without material corroboration, if the victim's evidence is foundbelieveable and trustworthy and does not suffer from any infirmity and inherentdisqualification.

Shamsul Haque (Md) vs State 52 DLR 255.

Section 119–

In case of awitness who is dumb, provisions of section 119 · of the Act is applicable. Suchwitness may make statement in writing or by using signs. But in case of awitness who is both deaf and dumb, there is no scope of giving any evidence assuch witness cannot hear any question.

Morshed (Md) @ Morshed @ Md Morshed Alam vs State 53 DLR 123.

Section 133–

In a casewhere bitter enmity is admitted between the parties it required as a rule ofprudence that there should be some such corroboration of the evidence of theinterested witness as may inspire confidence in the mind of the court.

Abul Kashem vs State 56 DLR 132.

Section 133–

This sectionmakes evidence given by a witness in a judicial proceeding admissible in asubsequent judicial proceeding where the question in controversy in bothproceedings is identical and where the witness is dead, or cannot be found, oris incapable of giving evidence.

State vs Ershad Ali Sikder and others 56 DLR 185.

Section 133–

Thoughconviction of an accused on the testimony of an accomplice cannot be said to beillegal, Courts will, as a matter of practice, not accept the evidence of sucha witness without corroboration in material particulars.

State vs Ershad Ali Sikder and others 56 DLR 305.

Sections 133 and 114(b)–

Though theconviction of an accomplice cannot be said to be illegal yet the courts will,as a matter of practice, not accept the evidence of such a witness withoutcorroboration· in material particulars.

State vs Ershad Ali Sikder and others 56 DLR 185.

Sections 133 and 114(3) –

The combinedeffect of sections 133 and 114(b) is that though a conviction based uponaccomplice's evidence is legal, the Court will not accept such evidence unlessit is corroborated in material particulars. The corroboration must connect theaccused with the crime.

State vs Ershad Ali Sikder and others 56 DLR 185.

Section 134–

Law does notrequire any particular number of witnesses to prove a case and conviction maybe well–founded even on the testimony of a solitary witness provided hiscredibility is not shaken.

Al–Amin and 5 others vs State 51 DLR 154.

Section 134–

It is truethat under section 134 of the evidence Act conviction can be based on theEvidence of a single witness but the evidence of that witness must be of unimpeachablecharacter.

Bimal Chandra Das alias Vim and 3 others vs State 51 DLR 466.

Section 134–

Non–examinationof nearby people not fatal to the prosecution case when there are eye–witnessesof the occurrence.

Milon @ Shahabuddin Ahmed vs State 53 DLR 464.

Section 134–

The trialCourt discarded the evidence of PW 2 as to the plaintiffs' case of possessionsince 1963 completely overlooking the provision of section 134 of the EvidenceAct.

Shishir Kanti Pal and others vs Nur Muhammad and others 54 DLR440.

Section 134 –

If a witnessis otherwise found reliable or independent or non–partisan or disinterested,the evidence of such a lone witness can be taken as the foundation in makingdecision as to an issue in the case.

Shishir Kanti Pal and others vs Nur Muhammad and others 55 DLR(AD) 39.

Section 134–

Though incertain cases even a single witness is enough to prove the case of a party butin the present case the above principle should not be applied, especially whenPW 1 is an interested witness, and evidence as to consideration money was notuniform.

Siraj Mia (Md) vs NasimaAkhter and anothe 55 DLR 554.

Section 134–

Corroborativeevidence is not an imperative component in every case of rape. The rule is notthat corroboration is essential before there can be a conviction.

Shibu Pada Acharjee vs State 56 DLR 285.

Section 134–

Thewell-known maxim which is a Golden Rule that "evidence has to be weighedand not counted" has been given statutory placement in section 134 of TheEvidence Act which provides that no particular number of witnesses shall in anycase be required for the proof of any fact.

Shibu Pada Acharjee vs State 56 DLR 285.

Section 135–

Recalling awitness– No explanation having been given as to why defendant–petitionersfailed to cross-examine PW 1 and what prejudice will be caused in the absenceof his cross-examination the judge rightly rejected the application forrecalling the witness.

Abu Bakkar vs Akbar Ali Biswas 45 DLR 62.

Section 137–

Court is toconsider the evidence of witnesses in their examination–in chief injuxtaposition with their cross-examination.

Abul Khair and another vs State 55 DLR 437.

Section 137–

The wife atthe relevant time of occurrence was at her husband's house and that she issubsequently found dead an obligation is cast upon the defence to account forthe circumstances leading to the death of the deceased failing which thehusband will be responsible for the death of the deceased.

Gias Uddin vs State 55 DLR 328.

Section 138–

Re-examinationshall not be allowed to destroy the effect of cross-examination.

IhteshamurRahman vs Masuda Khatun and others 50 DLR 159.

Section 138–

The right ofthe adverse party to cross–examine a witness is never confined to the factsdeposed to by the witness in his examination–in–chief but it extends to allmatters relating to the suit. The adverse party has the right to cross–examinea witness on all facts relevant in the suit.

Khalilur Rahman (Md) vs Asgar Ali 52 DLR 145.

Section 145–

Decision ofthe majority Judges– Defendant's deposition Exts.5 and 6 are inadmissible undersection 19 of the Evidence Act.

Notwithstandingthe challenge given as to the admissibility of Exts.5 'and 6 which have beentreated as substantive evidence, the High Court Division took the view thatthose previous statements are admissible for the purpose of contradiction. Withrespect, this conclusion is not founded on law. Exts.5 and 6 are inadmissiblein evidence and they cannot constitute as admission within section 19 of theEvidence Act.

KhorshedAlam vs Amir Sultan 38 DLR (AD) 133.

Section 145–

View ofShahabuddin, J (minority)– Deposition by the defendant in previous rent andmoney suits to the effect that he did not know his mother's name or where shelived etc.–He may be confronted with such deposition in a subsequent case undersection 145 Evidence Act to test his veracity.

KhorshedAlam vs Amir Sultan 38 DLR (AD) 133.

Section 145–

Principle oflaw regarding cross–examination –failure of a party to cross-examine thewitness of his adversary on material evidence–effect of– This rule of cross-examinationis not merely "a technical rule of evidence" but also "a rule ofessential justice"

Nur Mohammadvs Sultan Ahmed 40 DLR 369.

Section 145–

The recitalof kabala per se shall not go into evidence unless the person who made therecital raises any objection therefor.

Feroja Khatoon vs Brajalal Nath 43 DLR 160.

Sections 145 and 157–

Statementrecorded behind the back of the accused the same cannot be treated assubstantive evidence against him. Such statement can be used to corroborate orto contradict a statement made in the court in the manner provided in sections145 and 157 of the Evidence Act.

Hobi Sheikh and another vs State 56 DLR 383.

Section 154–

Evidence of the witness, who has been declaredhostile, would ipso facto not be of any worth for the prosecution, rather if onconsideration of the evidence of such kind of witness it is found that evidenceon record either has established the case of the prosecution or thatprosecution case does not stand scrutiny then whatever order in any respect ismade by the Court the same is very much sustainable in law.

MobarakHossain alias Mobarak vs State 56 DLR (AD) 26.

Section 155–

Contradictorystatement as to the presence of convict Captain Kismat Hashem at Road No. 32 inthe house of Bangabandhu Sheikh Mujibur Rahman casts a great doubt.

State vsLieutenant Colonel Syed Farook Rahman 53 DLR 287.

Section 155(3)–

In theinstant case except asking the PW 1 about filing of the written statement, thecontent thereof with which the PW 1 presently making any inconsistent statementwas not put to him in order to enable the respondents to explain thecircumstances against him. In that view of the matter, the content of writtenstatement though contradictory to the defendant's own case of transfer, couldnot be produced and relied in order to contradict PW 1.

Ahmed lmpex(Private) Ltd & others vs Moqbul Ahmed 56 DLR (AD) 92.

Section 156–

Thetestimony of the victim of sexual assault is vital and unless there arecompelling reasons which necessitate looking for corroboration of herstatement, the court should find no difficulty in acting on the testimony of avictim of sex crime alone to convict an accused where her testimony inspiresconfidence and is found to be reliable.

Al–Amin and5 others vs State 51 DLR 154.

Section 157–

Absence ofcorroborative evidence does not necessarily mean lack of legal evidence.

Ayub Ali(Md) vs Abdul Khaleque 56 DLR 489.

Evidence Act, 1872 [Section 31-80]

Evidence Act[I of 1872]

Section 31–

Admissionsare not conclusive proof of the matters admitted and the party is at liberty toprove that these were made under mistake of law or fact or that these wereuntrue or were made under threat, inducement or fraud.

Sonali Bank vs. Hare Krishna Das and others 49 DLR 282.

Section 32–

It is notrequired for a dying declaration that the maker should be in expectation of hisimmediate death nor it is restricted to homicidal death.

Humayun Matubbar vs State 51 DLR 433.

Section 32–

There isnothing in the evidence that after recording the dying declaration in Englishany person present at the time of recording of dying declaration translated thesame in Bengali and that explained the statement to the maker and that themaker admitted the correctness of the same. This being the position thecorrectness of the dying declaration is very much doubtful.

State vs Babul Hossain 52 DLR 400.

Section 32–

To make thedying declaration the basis for sentencing an accused to death or any othersentence the same is required to be found reliable.

State vs Babul Hossain 52 DLR 400.

Section 32–

An injuredperson under the impediment of death, while making oral or written dyingdeclaration, will not falsely implicate even the persons inimical to him.

Milon @ Shahabuddin Ahmed vs State 53 DLR 464.

Section 32–

The firstinformation report is a matter of special importance when its maker diedshortly after he made it. The FIR is clearly admissible in evidence. This mayalso be treated as a dying declaration in view of the fact that victim himselfdictated the ejahar at a time when his condition was really critical.

State vsRashid Ahmed & others 54 DLR 333.

Section 32–

If the Courtcan unhesitatingly accept it and act upon it, a dying declaration by itself canform the basis of conviction under given circumstances.

State vs RashidAhmed & others 54 DLR 333.

Section 32–

Identificationby torch light or hurricane light, at dead of night is not sufficient unlessthe distance is in close proximity and when there is a background of enmity andthe witnesses are chance witnesses and not natural witnessess and natural andindependent witnesses were not produced, it is unsafe to rely on the chancewitnesses to connect the accused with the crime.

Nepaleon Khondker alias Lepu and another vs State 54 DLR 386.

Section 32–

The dying declarationof victim has not been reduced to writing, yet when it has been proved byoverwhelming ocular evidence to prove the guilt of accused appellant, the dyingdeclaration of victim itself stands out as a strong piece of evidence provingthe guilt of the appellant.

Salim (Md) vs State 54 DLR 359.

Section 32–

When a dyingdeclaration of the victim is stated by the witnesses and the declaration is nottaken exactly in the own words of the deceased, but is merely a note of thesubstance of what had stated, it cannot be safely accepted as a sufficientbasis for conviction.

State vs Kabel Molla and others 55 DLR 108.

Section 32–

A dyingdeclaration enjoins almost a sacrosanct status as a piece of evidence as itcomes from the mouth of a person who is about to die and at that stage he isnor likely to make a false statement. Court's duty is to scrutinize thestatement and to separate grain from the chaff of the said statement.

Babul Sikderand others vs State represented by the DC 56 DLR 174.

Section 32–

Dyingdeclaration– If the dying declaration is acceptable as true conviction can bebased upon the dying declaration alone in the absence of corroborative evidenceon record.

State vsAbdul Hatem 56 DLR 431.

Section 32(1)–

Unless thedying declaration as compared to other evidence appears to be true, it cannotby itself form the basis of conviction of the accused.

State vsTota Mia 51 DLR 244.

Section 33–

Relevancy ofevidence by witness not available for cross-examination. There is no provisionin the Evidence Act that the evidence of a witness which is admissible at thetime he gave it should become inadmissible for the reason that he could not becross–examined for some unavoidable reason.

ChowdhuryMiah vs Dhanindra Kumar Shil 45 DLR 110.

Section 33–

A case ofprejudice likely to be suffered by an accused must depend on the facts of thecase and no universal straitjacket formula would be laid down thatnon–examination of investigating officer per se vitiates a criminal trial.

Babul Sikderand others vs State represented by the DC 56 DLR 174.

Section 34–

It wasincumbent on the Courts below to properly scrutinise the material circumstancesfor determining whether the chain of circumstantial evidence is so complete asto lead to the only conclusion of the appellant's guilt.

Osman Ganivs State 54 DLR (AD) 34.

Section 34–

Theexception taken by the Counsel for non–examination of all or reasonable numberof witnesses cited in the prosecution report is of no merit since it is for theprosecution to decide amongst the cited witnesses how many it will examine forestablishing its case against the accused persons.

Zahed AliForeman (Driver) and others vs State 56 DLR (AD) 29.

Section 35–

SchoolRegister, Admit Cards and Board's Certificate are public documents andadmissible in evidence under section 35, Evidence Act. Their evidentiary valueas regards age of a boy not treated as being correct tendency being tounderstatement of age.

Abul Hashemvs Mobarak Uddin 38 DLR 145.

Section 35–

LowerAppellate Court's finding as a final court of fact about age as given in theAdmit Card that the boy's Admit Card gives understatement of his age the HighCourt Division accepts that as binding on it.

Abul Hashemvs Mobarak Uddin 38 DLR 145.

Section 35–

A seizurelist, a post mortem report, a confessional statement recorded under section 164of the CrPC or any statement of any person recorded under section 161 of theCode not being in public or other official book, register or record, they arenot admissible under section 35 of the Evidence Act.

State vsErshad Ali Sikder and others 56 DLR 185.

Sections 40, 41, 42, 43 and 44–

"Relevant"means and relates to admissibility onlyEvidentiary value of a judgment whichis relevant is different from the question whether it is admissible inevidence.

HaziWaziullah vs Additional Deputy Commissioner, Noakhali 41 DLR (AD) 97.

Section 43–

Section 43of the Evidence Act is attracted to the present case. Under section 40 aprevious judgment, order or decree is relevant to bar a second suit, that is,when such a judgment operates as res judicata under section 11 CPC. Undersection 41 a final judgment, order or decree of a competent court in theexercise of probate, matrimonial, admiralty or insolvency jurisdiction, is notonly relevant but also is conclusive both against the parties thereto as wellas against the rest of the world, that is, it is a judgment in rem asdistinguished from a judgment in personam. Under section 42 a judgment isrelevant if it relates to any matter of public nature but it is not aconclusive proof of the fact it states. None of these sections, 40, 41 and 42,obviously is attracted to the instant case. It is section 43 which may beattracted to the instant case.

HaziWaziullah vs ADC Revenue 41 DLR (AD) 97.

Section 44–

Court'sjudgement, burden of- When the petitioner has produced a judgement and decree,the burden is on the adverse party to show that the court was not competent topass the decree.

RahelaKhatun vs Court of Settlement 45 DLR 5.

Section 44–

Fraud–When ajudgement is set up by one party as a bar to the claim of the other, the lattercan show that the same was delivered without jurisdiction or was obtained byfraud. It is not necessary for him to have the judgement set aside by aseparate suit.

Abdul GaniKhan vs Shamser Ali 45 DLR 349.

Section 45–

Neither thefinger prints forwarded to the expert were taken as per order nor in presenceof the Court. Under the facts and circumstances conviction based solely on expertreport is liable to be set aside.

Sabha RaniBiswas vs State and ors 52 DLR 293.

Section 45–

Medicalevidence is only corroborative in nature, the ocular evidence of theeye–witness which substantially corroborates the major injuries on the personof the deceased be accepted.

State vs MdShamim alias Shamim Sikder and ors 53 DLR 439.

Section 45–

Where thedirect evidence is not supported by expert evidence, and evidence is wanting inthe most material part of prosecution case it would be difficult to convict theaccused on the basis of such evidence.

NepaleonKhondker alias Lepu and another vs State 54 DLR 386.

Section 45–

Medicalevidence–The material obtained on the swab must be preserved and forwarded forexamination by the expert for the presence of human spermatozoa which is apositive sign of rape. It seems that the doctor examined the external part ofthe injuries of vagina and failed to make detail dissection so as to ascertainto prove the actual occurrence of rape.

State vsHarish 54 DLR 473.

Section 45–

The evidenceof an expert cannot alone be treated and used to form basis to find an accusedguilty and to form basis of his conviction independent of the substantiveevidence of the PWs in the case.

Kalu Sheikhalias Kalam Sheikh and others vs State 54 DLR 502.

Sections 45 & 73–

There aredifferent modes of proving the signature or hand writing on documents butsection 45 is one of them and in the instant case the court decided to haveopinion of the expert and there is no hard and fast rule for the court as towhich mode it should follow.

Dr WakilAhmed and ors vs Sufia Khatun and ors 53 DLR 214.

Sections 45 & 73–

Comparisonof disputed signature /LTI cannot be done by the expert with the saidregistered document which is not admitted or proved to the satisfaction of thecourt.

DineshChandra Deb vs Dulal Chandra Karmaker and others 53 DLR 259.

Sections 45 & 73–

Examinationof LTI – It is true Court itself can compare any signature or LTI of anyconcerned person himself under section 73 Evidence Act but it is better to havean expert's opinion also, particularly in a case of LTI.

Sk AbulQasem vs Mayez Uddin Mondal 45 DLR 169.

Sections 45 & 73–

Since byscientific process or method examination of signature, particularly thumbimpression, has developed much, it is safe and sound to leave the matter ofsuch examination to the expert or to the person specialized in the examination.

SerajuddinAhmed and others vs AKM Saiful Alam and others 56 DLR (AD) 41.

Sections 45 and 73–

It is alwaysopen to the Court to decide as to whether it should itself compare thequestioned signature or handwriting to come to a decision or send the same foran expert opinion.

Monju Miaand others vs Shira} Mia and others 56 DLR 264.

Sections 45 & 115–

Thecomparison of the LTI by the court is its discretion and it does not depend onparties' prayer alone nor can any court be compelled to take recourse toparticular mode of proof of handwriting.

Dr WakilAhmed and ors vs Sufia Khatun and ors 53 DLR 214.

Section 47–

Opinion asto handwriting– the evidence of PW s 1 & 5 as to the writings in Exts 1-3being not believable, the documents were not legally proved as the writingsthereof could not be proved.

NoorMohammad Khan vs Bangladesh 42 DLR 434.

Section 56–

Theplaintiffs having been successful in proving that the original kabalas werelost it cannot be argued that inadmissible evidences were relied upon as thecourts below found that secondary evidence was given of those original documents.

AbdulKhaleque Mollah vs ABM Zakaria and another 51 DLR (AD) 78.

Section 59–

Reliance onoral evidence of the interested witnesses in utter disregard of the principlesof law of evidence deprecated.

Abani MohanSaha vs Asstt. Custodian 39 DLR (AD) 223.

Section 60–

There is noevidence that the victim made any statement as regard the incident to anybodyother than PW 8. So the claim of PW 4 that victim stated to him about theincident of setting fire in her body by the condemned convicts can hardly beconsidered reliable.

State vsBabul Hossain 52 DLR 400.

Section 60–

PW 1 has notimplicated the accused with any overt act on the basis of charge but reiteratedthe statement as to derivative knowledge of involvement as mentioned in the FIRand in the charge–sheet which is inadmissible evidence.

State vsLieutenant Colonel Syed Farook Rahman 53 DLR 287.

Section 61–

Secondaryevidence when a deed is admitted to be lost. In ordinary cases, if the witnessin whose custody the deed should be, deposed to its loss, unless there is somemotive suggested for his being untruthful, his evidence would be accepted assufficient to let in secondary evidence of the deed.

Abani MohanShaha vs Asstt. Custodian 39 DLR (AD) 223.

Sections 61, 67 & 103–

MuslimMarriage is a socio–religious contract between a man and a woman and as suchsignatures of the parties in the Kabinnama are essential for proving marriage.No amount of oral evidence can cure the deficiency and no amount of oralevidence is sufficient to prove marriage when the plaintiff fails to prove theKabinnama according to law.

KhodejaBegum and others vs Md Sadeq Sarkar 50 DLR 181.

Section 62–

A firisti isno evidence of the contents of the documents in support of relationship oflandlord and tenant.

ChandanMondal@ Kushal Nath Mondal andothers vs Abdus Samad Talukder & others 51DLR (AD) 150.

Sections 62 & 63–

PrimaryEvidence – Primary evidence of document means document itself and it isproduced for inspection of the Court. When a party seeks to prove the contentsof document the best evidence rules require that party should produce theoriginal of the primary evidence.

Aftab Meahvs Bazal Ahmed 45 DLR 15.

Section 63–

Photostatcopies are admissible in evidence– The minutes recorded in the order book wereadmitted in evidence after dispensing with their formal proof.

MahajakShipping Co Ltd vs MV Sagar 39 DLR 425.

Section 63–

Thedefendants have not attempted to dislodge the evidence of the plaintiff whichremained unchallenged.

MahajakShipping Co Ltd vs MV Sagar 39 DLR 425.

Section 63–

A partyproducing secondary evidence ofa document is not relieved of the duty ofproving the execution of the original. Even where a document is exhibitedwithout objection the Court is to be satisfied as to its execution.

Sova RaniGuha alias Sova Rani Gupta vs Abdul Awai Mia and others 47 DLR (AD) 45.

Section 63(2)–

Theacceptance of the secondary evidence by the Subordinate Judge and his decisionin the 'suit relying upon such non-admissible evidence are errors of lawapparent on the face of the record.

Governmentof Bangladesh vs Mirpur Semipucca (Tin–shed) Kalayan Samity & others 54DLR 364.

Sections 63(2), 65 & 66–

Documentsbeing photo copies of the originals which were not called for and areconfidential official letters beyond the access of the plaintiffs areinadmissible evidence in the absence of originals.

Governmentof Bangladesh vs Mirpur Semipucca (Tin–shed) Kalayan Samity & others 54DLR 364.

Section 64–

Admission ofprivate documents as evidence–Even if no objection had been taken to formaladmission of the rent receipts, the plaintiff having relied upon them for hiscase was bound to prove their genuineness which would be decided by the courtin the light of the facts and circumstances of the case.

MdLashimuddin Kanchan vs Md Ali Ashraf 42 DLR (AD) 289.

Sections 64 & 65–

Partieshaving not raised objection against deciding the appeal on the basis ofdocuments already on record, .their admission into evidence is a mere formalityand there is no illegality in the judgment passed relying on such documents.

Lal ChandSardar vs Abdul Huq Howladar and others 47 DLR 401.

Section 65–

Secondaryevidence of a document is admissible in evidence.

HaziWaziullah vs ADC 41 DLR (AD) 97.

Section 65–

Whether aparty producing a document is exempted from explaining in the course ofrecording evidence why the original was not produced even though no objectionwas raised when it was produced.

HaziWaziullah vs ADC 41 DLR (AD) 97.

Section 65–

Newspaperreport cannot be admitted into evidence unless the correspondent of such areport comes to the witness box· to vouchsafe in support of the report on oath.

Osena Begumalias Babuler Ma and another vs State 55 DLR 299.

Section 65–

An omissionto object in respect of an inadmissible evidence would not make it admissible.Reliance in this regard may be made to the decision in the case of Miller vsBabu Madho Das 23 IA 106.

NationalBank Ltd and others vs Habib Bank Ltd and others 56 DLR 15.

Section 66–

Secondaryevidence, admissibility of– Certified copies of certain kabuliyats were filedwithout calling for the original copies. Learned Judge of the High CourtDivision on a wrong consideration of section 66 Evidence Act left those out ofconsideration treating them as inadmissible as the originals were not calledfor. But the documents having been filed and marked exhibits without anyobjection the question of inadmissibility of those documents cannot be raisedat a subsequent point of time.

JoynalAbedin & others vs Mafizur Rahman 44 DLR (AD) 162.

Sections 67 and 68–

Registration,attaches a statutory presumption which extends to the registration of the deedonly. Such presumption is never intended to extend to the genuineness of thetransaction or to prove execution and/or recitals in the deed.

Kamaluddinand others vs Md Abdul Aziz and others 56 DLR 485.

Section 68–

A registereddocument carries with it a presumption of validity which can be rebutted aftergiving due opportunities to the parties. The case is remanded for. disposalafter giving such opportunity to prove genuineness or otherwise of the kabalain question.

Haji Sk. MdLutfur Rahman vs Chairman, Court of Settlement 45 DLR (AD) 136.

Section 73–

Court itselfcompetent to compare a disputed hand–writing or signature of a person with hisadmitted writing or signature to come to a conclusion.

Abdul MainChowdhury vs Chapala Rani 37 DLR 205.

Section 73–

Comparisonof signature– when direction for comparison is not called for the case is onefor eviction and not for determination of title between the competing parties.Profulla Chandra who is sought to be summoned for his specimen signature wasnot present before the Court either as a witness or in any other capacity. Inthe facts of the case the question of directing him to give his specimensignature does not arise.

BIWTC vsNazma Flour Mills Ltd 43 DLR (AD) 105.

Section 73–

The court atthe time of deciding a case may compare the disputed handwriting and signaturewith the admitted hand-writing or signature of the person concerned and come tothe conclusion about the genuineness of the same. Such finding being a findingof fact cannot be assailed either in Second Appeal or in Revision.

Nowazullah vsWaz Khatun 45 DLR 279.

Section 73–

When adocument is produced by a party and the signature appearing therein is provedand subsequently the person concerned denies the signature, it is the duty ofthe Court to compare the same with his other admitted signatures on record.

HaragramTrust Board vs. Dr. Golam Mortuza Hossain 47 DLR 160.

Section 73–

The trialCourt committed wrong in discarding the Will on mere comparison of the threesignatures by naked eyes without any opinion by any expert. Pratik Bandhu Royand others vs.

Alok BandhuRoy and others 49 DLR 241.

Section 73–

The sectionpermits the Court to make a comparison of signature or writings and so adoptionof such a method cannot be termed as hazardous or dangerous.

Ishaque (Md)vs Ekramul Haque Chowdhury and others 54 DLR (AD) 26.

Section 73–

The Court isnot bound to refer a document to the handwriting expert when it can itself notethe dissimilarity in LTIs and handwriting.

Majizul HoqBebu (Md) vs Majida Begum and others 54 DLR 219.

Section 73–

In view ofthe provision of section 107(2) of the Code the High Court Division wascompetent to compare the signature of the defendant in the 'bainapatra' withhis available signatures and, as such, was in error in sending back the casefor the said purpose to the trial Court.

Aftab Ali(Captain Retired) vs SM Kutubuddin 56 DLR (AD) 117.

Sections 73 & 45–

Examinationof LTI– It is true Court itself can compare any signature or LTI of anyconcerned person himself under section 73 Evidence Act but it is better to havean expert's opinion also, particularly in a case of LTI.

Sk AbulQasem vs Mayez Uddin Mondal 45 DLR 169.

Section 74–

Plaint andwritten statements are public documents under section 74.

Reazuddin vsAzimuddin 39 DLR 228.

Section 74 & 114(e)–

Objection asto admissibility of evidence is to be taken at the first instance. In theinstant case no .such objection was raised against the Commissioner's report inquestion which can also be relied upon as the same is an official document andwas prepared in due course.

Abdul QuaderChowdhury vs Sayedul Hoque 43 DLR 568.

Section 79–

A registereddocument carries presumption of correctness of the endorsement made therein–Onewho disputes this presumption is required to dislodge the correctness of theendorsement.

ShishirKanti Pal and others vs Nur Muhammad and others 55 DLR (AD) 39.

Sections 79 & 114(e)–

TheEkrarnama is a registered deed. So there arises under sections 59 and 60 of theRegistration Act read with sections 79 and 114 (illustration e) of the EvidenceAct a presumption that it was duly presented and registered.

Wahida Begumvs Tajul Islam 52 DLR 491.

Section 80–

It wasinjudicious to rely upon confession without calling the Magistrate as awitness. The Court is required to see not only that the forms under sections164 and 264 CrPC were complied with but the substance underneath the lawequally adhered to.

BimalChandra Das alias Vim and 3 others vs State 51 DLR 466.

Section 80–

In theattending facts and circumstances of the case when the veracity of theconfessional statement is questionable, the same enjoys no presumption ofcorrectness under section 80 of the Evidence Act.

Belal aliasBellal and 2 others vs State 54 DLR 80.

Section 80–

High CourtDivision wrongly applied the provisions of section 80 to admit into evidence astatement of a witness recorded under section 164 during investigation stageand not in a judicial proceeding.

Hossain@ForanMiah and others vs State 56 DLR (AD) 213.

Evidence Act, 1872 [Section 81-114]

Evidence Act[I of 1872]

Section 85–

A power ofattorney executed by a person resident in Bangladesh and registered is a legaldocument.

ManindraMohan vs Ranadhir 38 DLR 240.

Section 85–

Writtenstatement filed under the authority ofpower–of–attorney executed and duly registered is duly presented in Court.

ManindraMohan vs Ranadhir 38 DLR 240.

Section 85–

Power-of-attorneythough not authenticated by notary public, but when it is duly executed andregistered, it is a valid document acceptable in law.

ManindraMohan vs Ranadhir 38 DLR 240.

Section 85–

Power ofattorney must be executed according to the provision of section 85 of the Actotherwise a person holding a power of attorney is not legally permitted torepresent his principal under Order III rule 2(a) of the Code.

RameshChandra Chowdhury @ Das vs Naresh Chandra Das @ Chowdhury 52 DLR 227.

Section 85–

The power ofattorney, not executed before, and authenticated by a notary public or anyrepresentative of the foreign mission, is not admissible in evidence.

Shah Alam (Md)vs Abul Kalam and others 54 DLR 276.

Section 88 & 114(c)–

Wherejudicial or official act is shown to have been done it is presumed to have beenrightly and regularly complying with necessary requirements.

AkhtarHossain vs Government of Bangladesh & ors. 45 DLR 651.

Section 91–

Reconveyance–Onthe face of registered instrument and in the absence of any contemporaneouswritten instrument, the oral evidence is not at all sufficient to hold thatthere was any agreement between the parties for reconveyance of the suit land.The established rule of evidence to be relied is that oral evidence isinadmissible for the purpose of asserting the intention of the parties in theface of the written instrument.

BudhiswarBiswas vs Akbar Ali Sheikh 43 DLR 183.

Section 91–

Evidence ofterms of contract –Parties in the contract are bound to fulfil the terms of thecontract specifically. If they fail to do so, the Court will pass a decree forspecific performance of the contract.

BCIC vsGrand Basia Company Ltd 43 DLR 256.

Section 91–

Oraltestimony contrary to order recorded by the Court in due course of businesscannot be relied on unless it could be shown that the same was obtained bypractising fraud upon the Court.

AfsaruddinSardar (Md) vs Md Wazed Ali Sarder 47 DLR 595.

Section 91–

Whiledeciding the application for preemption, the Court cannot go behind theintentions of the parties in executing the deed of the transfer. Furthermore,any evidence to vary the terms of such deed is also barred under the provisionsof section 91 of the Evidence Act.

SazedaKhatun vs Asad Ali and others 53 DLR 563.

Section 91–

Since theHukumnama shows that Firoz is the only recipient of the land oral evidence toprove that the same is not correct cannot be allowed.

Abu AshedBhuiyan and others vs Abu Taher Bhuiyan and others 54 DLR 209.

Section 91–

Whiledeciding an application for preemption, the Court cannot go behind theintentions of the parties in executing the deed of the transfer. Any evidenceto vary the terms of such deed is barred under the provisions of section 91 ofthe Evidence Act.

SazedaKhatun vs Asad Ali and others 54 DLR 285.

Sections 91 and 92–

When theintention in executing a document is not what is stated in the document itselfbut is something else–this fact may be proved–Bar of sections 91 and 92,Evidence Act, cannot be invoked in circumstances like this.

In suchcases extrinsic evidence would be admissible to prove that a document which isapparently a deed of gift or a sale with an agreement for re–sale is· in facta deed of mortgage.

Jaha BakshaPar vs Fazle Karim Biswas 37 DLR 87.

Sections 91 and 92–

Whatsections 91 and 92 provide–It is an established rule of evidence that oralevidence is inadmissible for the purpose either of construing terms of adocument or of ascertaining the intention of the parties thereto.

Feroza Majidvs JB Corporation 39 DLR (AD) 78.

Section 92–

In view ofthe provision of section 92, a deed of sale cannot be treated as amortgage–deed and intention to treat as a mortgage deed cannot also bepermitted.

Feroza Majidvs JB Corporation 39 DLR (AD) 78.

Section 92–

Oralextraneous evidence to contradict the terms of the contents of a document isinadmissible under section 92 of the Evidence Act.

Feroza Majidvs JB Corporation 39 DLR (AD) 78.

Section 92–

Althoughoral evidence contradicting the contents of a document is not generallyadmitted, such evidence is admissible in exceptional circumstance when thevalidity of the document itself on the ground of fraud is in issue.

Tuglak Khanvs Sultan Nasiruddin 45 DLR 615.

Section 92–

Oralevidence when inadmissible–It is surprising to notice that the subordinateJudge could be oblivious of the provision of law and decide a question of facton the basis of inadmissible oral evidence of no worth at all contrary toadmitted documentary evidence on record and could also decide the question offact without consideration of the contents of the relevant documentaryevidence.

PragatiIndustries Ltd vs Shahida Khatun 43 DLR 429.

Section 92–

Reconveyance–On the face of registered instrument and in the absence of any contemporaneouswritten instrument, the oral evidence is not at all sufficient to hold thatthere was any agreement between the parties for reconveyance of the suit land.The established rule of evidence to be relied is that oral evidence isinadmissible for the purpose of asserting the intention of the parties in theface of the written instrument.

BudhiswarBiswas vs Akbar Ali Sheikh 43 DLR 183.

Section 92–

Writtenterms of the contract cannot be altered or varied by oral evidence.

SerajulIslam (Md) vs Binoy Bhusan Chakraborty and others 47 DLR 248.

Section 92–

There isnothing in section 92 of the Evidence Act to prevent the admission of oralevidence to prove that a mortgage has been discharged partly by payment andpartly by release of debt.

Tafzal AhmedContractor vs Abdur Rahim and others 48 DLR (AD) 94.

Section 94–

Evidence ofterms of contractParties in the contract are bound to fulfil the terms of thecontract specifically. If they fail to do so, the Court will pass a decree forspecific performance of the contract.

BCIC vsGrand Basia Company Ltd 43 DLR 256.

Section 101–

Onus ofproof–It is for the defendant to prove that the disputed document was executedon the purported date–Mere assertion in the written statement cannot be treatedas evidence–Document being between two brothers registered at a different SubRegistrar'soffice and attesting witnesses being close relations of the recipient, thereare strong circumstances in favour of collusion.

Haji KaramatAli Master vs Lehajuddin Talukder 41 DLR 447.

Section 101–

The initialonus lies on the plaintiff to prove his title. [32 DLR (AD) 29 distinguished].

Abani MohanSaha vs Asstt. Custodian 39 DLR (AD) 223.

Section 101–

Burden ofproof lies on the person who asserts that a fact exists.

HaqueBrothers vs Shamsul Huq 39 DLR 290.

Section 101–

Disbelief ofthe defence case ipso facto does not make the plaintiff's case believable. Evenin the case of an ex parte disposal of a suit, the court is required to come toa finding on assessment of the materials that the plaintiff has been able toprove his case.

SheikhSalimuddin vs Ataur Rahman 43 DLR 18.

Section 101–

Thedefendant took the ground that late Alimuddin did not sign the will, the onuswas upon the defendant to prove that late Alimuddin did not sign the same.

MoinuddinAhmed alias Farook vs Khursheda Begum and ors 54 DLR 354.

Section 101–

He whoalleges fraud or forgery, burden lies upon him to prove the same. Thepetitioners by filing an application for calling for the record of theconcerned case took reasonable steps to prove their the case of fraud andforgery. The application was rightly filed.

Abdullah(Md) and others vs Majibul Huq and others 56 DLR 528.

Sections 101 & 102–

The definitecase of the Government being that the suit property is an abandoned property,onus lies on them to prove that it is an abandoned property.

Governmentof the People's Republic of Bangladesh vs Hosne Ara Begum and others 48 DLR511.

Sections 101 & 102

When boththe parties lead evidence question of onus is out of place and the matter is tobe decided on the evidence led by the parties.

Ishaque (Md)vs Ekramul Haque Chowdhury and others 54 DLR (AD) 26.

Sections 101 & 103

Mere filingof a rent receipt or a private document without formal proof thereof andwithout proving the contents of such documents cannot fulfil the requirementsof law.

Bangladeshvs Md Aslam 44 DLR 69.

Sections 101–104

Defendantthough pleaded marriage of Monwara with Amir Ali yet the onus of proof is noton him (but on the plaintiff).

KhorshedAlam vs Amir Sultan 38 DLR (AD) 133.

Sections 101-104

Plaintifffailed to prove that defendant is the son of the prostitute Baramoni––Courtbelow shifted the onus on the defendant to prove marriage of Monwara with AmirAli contrary to law.

KhorshedAlam vs Amir Sultan 38 DLR (AD) 133.

Sections 101–104

Plaintifffailed to establish that there was no marriage between Amir Ali and Monowaraand also that Khorshed Alam is the son of Baramoni–Again, all the courts belowworked under a misconception of law as to the question of onus of proof andthey placed the onus on the defendant about Monowara's marriage–Which wasclearly for the plaintiff to discharge.

KhorshedAlam vs Amir Sultan 38 DLR (AD) 133.

Sections 101–104

Plaintifffailed to discharge the onus of proof that defendant I was the son of Baramoni,a prostitute and was adopted by Amir Ali–Plaintiff did not examine Baramoni toprove his case–Appellate Court's finding that Baramoni was not examined aswitness by defendant which shows that defendant I was not the son of Amir Ali.This conclusion is unwarranted and contrary to all presumptions of law built upover the last 150 years.

KhorshedAlam vs Amir Sultan 38 DLR (AD) 133.

Sections 101–104

Onus ofproof–Where no difficulty arises in arriving at a conclusion, the question ofonus recedes to the background, but where court finds it difficult to make upits mind the question comes to the foreground and becomes the deciding factor.In the present case the onus of proving the oral contract lies on the plaintiffand this onus remained constant as neither the oral contract nor any part of itwas admitted by the defendant.

Jonab Ali(Md) vs Md Moslem Uddin 44 DLR 291.

Section 102–

Thisobservation of the SubJudge · was correctly made. The onus was not wronglyplaced on the defendant. Contention of the appellant's Counsel regarding thequestion of limitation. The finding of the lower appellate Court cannot beconstrued as making of new case regarding the barga settlement. Limitation is amixed question oflaw and fact after considering the evidence both oral anddocumentary.

Afroz Rashidvs Fazlul Karim 40 DLR (AD) 79.

Section 102–

Burden ofProof and Onus Probandi –The plaintiff has produced not an agreement of salebut a receipt of earnest money, signed not by the owner of suit properties butby her son– The basis of his suit is an oral agreement, not Ext. 4 the receiptwhich is only a supporting evidence. The defendants have no burden to provetheir alternative story with regard to the creation of Ext. 4.

Al–Haj AhmedHossain vs Rejaur Rahman 42 DLR (AD) 225.

Section 102–

Burden ofproof–plaintiffs having failed to prove their title and possession in the suitland there is no necessity of deciding whether the suit land vested in theGovernment.

NoorMohammad Khan vs Bangladesh 42 DLR 434.

Section 102–

Burdenrelating to forged document– The petitioner–pre–emptor discharged his initialburden (as to his knowledge of limitation for the pre–emption proceeding) byfiling in court the copy of a petition showing the date of his knowledge. Theopposite parties' case is that the petitioner –by 'forging the thumb impressionof the person concerned filed the petition in order to create cause of actionfor the pre–emption case but there is no explanation by them as to why theperson concerned (one Aynal Khan) could not be produced to deny his signaturein the petition (in proof of the forgery). The opposite parties have thereforefailed to discharge their burden to show that the petition was a forgeddocument.

Abdul MalekHowlader vs Umme Kulsum 42 DLR 459.

Section 102–

Whereinitial onus is discharged by the plaintiffs by giving slight evidence theburden shifts to the defendant to prove the contrary.

Amirunnessavs Golam Kashem 42 DLR 499.

Section 102–

In a casewhere the alleged executant denies execution of a document it is the duty ofthe plaintiff to prove such execution.

SerajulIslam (Md) vs Binoy Bhusan Chakraborty and others 47 DLR 248.

Section 103–

Burden ofproof as to particular fact– The defendant in a suit for specific performanceof contract admits her LTI in the agreement for sale and offers an alternativestory as to how her LTI came to be put on the document. The onus lies on her toprove the alternative story.

Md ChandMiah vs Khodeza Bibi 42 DLR 344.

Section 103–

Onus lies onthe defendant to prove her alternative story as to how her LTI came to be puton the document.

Chand Miahvs Khodeza Bibi 42 DLR 344.

Section 103–

Onus of Proof–Transferee to discharge his onuswith regard to payment of money on good faith and absence of knowledge of theearlier contract–Lower appellate Court has left this point undecided.

MuktarHussain Khan vs Suresh Chandra Dey 42 DLR 86.

Section 103–

There iswrong shifting of onus by the Courts below–In the instant case the learnedcourts below put the onus on the defendant from the very beginning withoutfinding whether the plaintiff had prima facie proved his case only when theonus would be upon the defendant to prove that he is not a defaulter,thereafter but paid rent without a receipt. It appears that there is a wrongshifting of onus by the courts below initially in the instant case.

NarayanProsad Bhowmic vs Sreela Sree Juktaswar Radha 40 DLR 449.

Section 103–

Burden ofproof as to particular fact– The defendant wants the courts to believe that thesale deed Ext. 2, the basis of Ext A, is a bonafide document for valuableconsideration but no evidence in this regard having been adduced the said Ext.cannot be allowed to stand.

AnwarHossain vs Abul Hossain Molla 44 DLR 79.

Section 105–

If theaccused wants to bring his acts within any one or more of the generalexceptions enumerated in Chapter IV of the Penal Code, it is for him to provethat his acts are so covered under any of those general exceptions.

NikhilChandra Halder vs State 54 DLR 148.

Section 105–

The burdenof proving the existence of circumstances bringing the case within theexception lies on the accused.

State vsAbdus Samad@ Samad Ali 54 DLR 590.

Section 105–

Accused'spleading of self-defence need not be proved if he establishes facts which onthe test of preponderance of probabilities makes his defence acceptable.

Hasan Ronyvs State 56 DLR 580.

Section 105–

Burden ofProof–In criminal law, the onus of establishing all the ingredients, whichcould make a criminal offence, lies always on the prosecution and this burdennever shifts upon the accused.

Hasan Ronyvs State 56 DLR 580.

Section 106–

Husband ofthe deceased was found absconding without any explanation. He neither gave anyinformation to the police nor to his mother–in–law that her daughter has diedor to any local people. He thus failed to fulfill the requirement of law andthe natural expectation about the cause of death of his wife.

JoynalBhuiyan & another vs State 52 DLR 179.

Section 106–

The definiteand specific defence plea being within the special knowledge of the accused aburden was cast upon him to discharge it, more so, when the prosecution provedthe guilt of the accused by convincing and overwhelming evidence.

Jamal Uddinalias Md Jamal Uddin vs State 52 DLR 330.

Section 106–

Section 106Evidence Act is attracted in exceptional cases where a relevant fact ispre–eminently within the knowledge of the accused.

Hasmat Alivs State 53 DLR 169.

Section 106–

In a casewhere the wife is proved to have died of assault in the house of the husbandthere would be strong suspicion against the husband that at his hand the wifedied. To make the husband liable the minimum fact that must be brought onrecord either by direct or circumstantial evidence is that he was present inthe house at the material time.

Hasmat Alivs State 53 DLR 169.

Section 106–

The recoveryof the bloodstained axe and lungi belonging to the convict constituted astrong circumstantial evidence, conclusive enough so as not to admit anyhypothesis of his innocence.

Hasmat Alivs State 53 DLR 169.

Section 11 –

Thepresumption under section 110 in this case would apply only if two conditionsare satisfied viz, the possession of the person claiming long possession is notprima facie wrongful and secondly, the title of the person against whom thelong possession is claimed is not proved.

Gouri Dasand others vs ABM Hasan Kabir and others 55 DLR (AD) 52.

Section 111–

When anydeed is executed by a pardanashin lady burden lies on the person who claimsbenefit under the deed to establish that the deed was executed by her on herown accord. Independent advice in case of transfer of property by pardanashinlady is insisted when the transferee stands in a fiduciary relationship withthe lady.

Abdul MannanShah vs Kafiran Nessa 46 DLR 103.

Section 112–

Parenthood,proof of– If a person wants to prove that he is not the father of his child, hemust establish that he had no access to the wife. Once it is proved that he hadaccess to his wife, the fact that his wife was a woman of bad character andthat she was accessible to other people too is not a ground to hold that thechild born during the continuance of marriage or within 280 days after itsdissolution is not that person's child.

Jashimuddin(Md) alias Md Jashimuddin vs Dali Begum and another 56 DLR 358.

Section 114–

Acquisitionof land for Railway–Two public documents one being a copy of Gazettenotification of 1933 and the other the land's plan which were more than thirtyyears old and filed as exhibits lead to a presumption that official actsreferred to therein were regularly performed and those documents weresufficient to rebut the presumption of correctness of RS and subsequent recordof right.

GMBangladesh Railway vs Mossammat Sharifjan Bibi 43 DLR (AD) 112.

Section 114–

Court willtake adverse presumption for non–production of any evidence or non–examinationof any witness if the party is in a position to produce such evidence orwitness.

MahatabuddinBiswas vs Abdul Jalil and others 47 DLR 441.

Section 114–

There isalways a presumption that government action is in public interest. The Courtwill not easily assume the action taken by the government is unreasonable orwithout public interest. It is for the party challenging authority to show thatit is wanting in public interest. This burden is heavy and has to be dischargedby the party concerned.

Akramuzzamanvs Government of Bangladesh, and others 52 DLR 209.

Section 114–

Tendering ofvital witness amounts to withholding of material witnesses and adversepresumption ought to have been drawn against the prosecution.

Hobi Sheikhand another vs State 56 DLR 383.

Section 114, Ills, (f)–

Noticeaddressed duly returned with remarks refused–validly served.

Ambia Khatunvs Serajul Islam 39 DLR 287.

Section 114(c)–

There beinga presumption of regularity of a judicial act under section 114( c) of theEvidence Act whenever a judgment–debtor or anybody stepping into his shoesseeks to have a decree passed by a court of competent jurisdiction adjudgedvoid by reason of fraud, a heavy onus lies on him to prove the alleged fraud bycognate and reliable evidence.

SabitriBarai vs Asstt. Custodian 39 DLR 172.

Sections 114(c) & 88–

Wherejudicial or official act is shown to have been done it is presumed to have beenrightly and regularly complying with necessary requirements.

AkhtarHossain vs Government of Bangladesh & ors 45 DLR 651.

Section 114(e)–

Objection asto admissibility of evidence is to be taken at the first instance. In theinstant case no such objection was raised against the Commissioner's report inquestion which can also be relied upon as the same is an official document andwas prepared in due course.

Abdul QuaderChowdhury vs Sayedul Hoque 43 DLR 568.

Section 114(g)–

There isnothing on record to find any justifiable reason for the absence of theplaintiff in the suit although his bonafide was seriously challenged from thevery beginning. Under such circumstances, the Court of appeal below appears tobe justified in drawing an adverse presumption against the plaintiff.

Abdur Rahimvs Arifur Rahman and others 50 DLR 166.

Section 114(g)–

The documentis as old as 50 years and there is no evidence that the defendant had wilfullysuppressed the document from producing it in court. In that view the findingsof the court of appeal as to the presumption under section 1l4(g) of theEvidence Act is untenable.

Shahidullahand others vs Lutfur Karim and others 50 DLR 328.

Section 114(g)–

When anaction is taken by maintaining a file, the file must be produced to show thatthe act was done properly. As the relevant file has been withheld in this casepresumption under section l 14(g) of the Evidence Act shall apply.

ChowdhuryMahmood Hasan and others vs Bangladesh and others 54 DLR 537.

Section 114(g)–

Defence wasobviously deprived of scope to cross–examine investigation officer on vitalaspects and it is obvious that defence was prejudiced seriously due to non-examinationof the investigation officer. Prosecution offered no explanation as to non-examinationof some CS witnesses including investigation officer and it will give –rise topresumption under section 114G Evidence Act.

MokbulHossain and another vs State 55 DLR 396.

Section 114(g)–

When it isnot disputed that the payments were made by cheques, in order to prove thedates of the cheques, the plaintiff could have easily called for the record ofthe bank. But the plaintiff preferred not to tread the path and therebywithheld the best evidence from the Court.

Saroj Kanta Sarker and others vs Seraj-ud-Dowla and others 56 DLR39.

Section 114(g)–

The evidenceof a prosecutrix in a rape case customarily, being a woman of full age, is notaccepted as sufficient, but requires corroboration by independent evidence inorder to be believed which has been found in the decision reported in 19 DLR(SC) 259.

Hossain Shially (Fakir) vs State 56 DLR 637.

Excise Act [V of 1909]

Excise Act[V of 1909]

Section 2(5)–

Collector–Meaning of Collector is Chief Officer-in-Charge of RevenueAdministration–Previous system in which the Collector was in charge ofadministration of excise under the Bengal Excise Act No. V of 1909 had discontinuedafter partition in 1947–"Collector" was later substituted by"Deputy Controller of Narcotics and Liquor" who was responsible foradministration of Narcoties and Liquor with power to issue, suspend and cancellicence.

GopalChandra Shah vs The Deputy Commissioner, Sunamganj & anr 41 DLR (AD) 60.

Section 26(1) –

In view ofsub–section (1) the District Magistrate cannot close down a shop for anindefinite period or pass any order of such indefinite import, except in caseof preservation of public peace.

Fromsub–section ( 1) above it is clear that the District Magistrate is authorisedto order closing down of a shop at such time or for such period as he may thinknecessary for the preservation of the public peace. It is apparent thatmaintenance of the public peace being of prime concern the local administrationhas been vested with such a power. But in the nature of things and in view ofthe provisions of sub–section ( 1) a District Magistrate cannot close down ashop for an indefinite period or pass an order having such indefinite import.The foundation of an order under sub–section (1) must, of course, bepreservation of the public peace.

GopalChandra Shah vs Deputy Commissioner 41 DLR (AD) 60.

Excise and Salt Act, 1944 & Excise and Salt Rules, 1944

Excise andSalt Act [I of 1944]

Section 3(4)–

Guidingprinciple for determination of production capacity–Though not legislativeprinciples they are in the nature of Rules for attaining uniformity in theapplication of a new provision to different industrial units. The respondentsexceeded their jurisdiction in levying and collecting excise duty withoutmaking any proper guidelines.

EasternBeverage Industries Ltd vs Bangladesh and others 47 DLR 32.

Section 3(4)–

Under ourConstitution there is considerable intermingling of the governmental functions,or large part of the legislative function is carried by Ordinances promulgatedby the Head of the State and in considering the validity of the impugnedamendments and the notifications issued by the National Board of Revenue underthe provisions of section 3(4) of the Excise and Salt Act, 1944 they had thesanction of law and, as such, taxation power was also expressly saved byArticle 83 of the Constitution.

Bangladeshand ors vs Eastern Beverage Industries Ltd & anr 56 DLR (AD) 153.

Section 12A(I)–

A person isentitled to claim refund of an amount paid by him to another person when thesame was not due from him to such person as he suffered the loss for no faultof his own.

TamannaSteel Galvanising Industry Ltd vs Government of Bangladesh and others 50 DLR 8.

Section 12(A)(l)–

Payment ofexcise duty- Bata Shoe Company claimed exemption from payment of excise dutyon the footwears purchased by it for its trading purpose–whether this plea ofexemption tantamount to fraud on the statute–The basis of the exemption frompayment of excise duty is the manufacture of footwears without the aid of anymachinery or equipment operated by power, steam or gas exemption cannot .bedenied by giving a strained meaning to the term "manufacture" anddirecting Bata to pay the excise duty on foot wears not mechanically producedand purchased by Bata Shoe for its trading purpose, only because they were soldunder the Bata's printing and packing, when Bata asserted that the fixing ofits trade name, embossing of price and the packing were all done bynon–mechanical process.

NationalBoard of Revenue vs Messrs Bata Shoe Co. 42 DLR (AD) 195.

Excise andSalt Rules, 1944

Rule 10–

When shortlevy is admitted after a belated stage, the government cannot come up with a pleathat the petitioner is liable to pay the excise duty and the rates at the rateof 20% when the same was never determined and approved by the Collector ofCustoms and never realised or collected from the buyers.

Gazi WiresLtd vs National Board of Revenue 50 DLR 393.

Rule 11–

A person isentitled to claim refund of an amount paid by him to another person when thesame was not due from him to such person as he suffered the loss for no faultof his own.

TamannaSteel Galvanising Industry Ltd vs Government of Bangladesh 50 DLR 8.

Extradition Act, 1974

ExtraditionAct [LVIII of 1974]

Section 4–

Thegovernment has sufficient legal authority to extradite Anup Chetia to India inresponse to the right of India to demand extradition of Anup Chetia.

Saiful IslamDilder vs Government of Bangladesh and others 50 DLR 318.

Section 6–

A 'fugitiveoffender can be extradited from Bangladesh to the United Kingdom in the manneras stated in section 6 of the Act.

Abdul AbedinAbdul vs State 53 DLR 109.

Sections 6 & 12–

Inconsidering the prayer for bail of a fugitive offender arrested or detainedunder the Extradition Act, provision of section 497 of the Code of CriminalProcedure shall have to be considered.

Abdul AbedinAbdul vs State 53 DLR 109.

Factories Act, 1934

FactoriesAct [XXV of 1934]

Sections 50 & 58–

Thisdistinction between the Shops and Establishments Act, 1965 and the FactoriesAct. 1965 makes it very clear that the overtime work will begin in the case ofthe workers of the former category after the stipulated hours of work betweenthe Management and the workers and that overtime will have to be paid at doublethe ordinary rate of wages as soon as the stipulated hours of works arereached.

GeneralManager, Jamuna Oil Company Ltd vs Chairman, Labour Court and others 51 DLR(AD) 91.

Sections 58 & 50–

Thisdistinction between the Shops and Establishments Act, 1965 and the FactoriesAct. 1965 makes it very clear that the overtime work will begin in the case ofthe workers of the former category after the stipulated hours of work between theManagement and the workers and that overtime will have to be paid at double theordinary rate of wages as soon as the stipulated hours of works are reached.

GeneralManager, Jamuna Oil Company Ltd vs Chairman, Labour Court and others 51 DLR(AD) 91.

Family Courts Ordinance, 1985

FamilyCourts Ordinance [XVIII of 1985]

Section 3–

The Family'Appellate Court cannot exercise power in sending the suit back on remand tothe Family Court for disposal and it can only decide the appeal keeping itsauthority within the four walls of the Ordinance itself.

AtiqurRahman (Md) vs Ainunnahar 52 DLR 453

Sections 3,5 & 4–

FamilyCourts Ordinance applies to all citizens irrespective of religion.

PochonRikssi Das vs Khuku Rani Dasi and others 50 DLR 47.

Sections 3 & 5–

Plaintiffssuit for enhanced maintenance for her daughter under the Ordinance upon freshcause of action is maintainable notwithstanding the earlier order of theMagistrate in exercise of jurisdiction under section 488 CrPC.

KowsarChowdhury vs Latifa Sultana 54 DLR 175.

Section 4–

The FamilyCourts Ordinance has not taken away any personal right of any litigant of anyfaith. It has just provided the forum for the enforcement of some of the rightsas is evident from section 4 of the Ordinance.

PochonRikssi Das vs Khuku Rani Dasi and others 50 DLR 47.

Section 5–

A personprofessing any faith has got every right to bring suit for the purpose ascontained in this section–a Hindu wife is not debarred from bringing a law suitfor her maintenance against her husband under this Ordinance.

Nirmal KantiDas vs Sreemati Biva Rani 47 DLR 514.

Section 5–

After thecoming into force of the Family Courts Ordinance the Criminal Court'sjurisdiction has been ousted in respect of awarding maintenance except in caseof pending proceedings.

PochonRikssi Das vs Khuku Rani Dasi and others 50 DLR 47.

Section 5–

Under theFamily Courts Ordinance not only the wife is permitted to file a suit in theFamily Court for her maintenance–she can also claim maintenance of her child inthe same suit. It was not necessary for the child to file a suit formaintenance himself or to become a co-plaintiff with his mother in suit.

Saleha Begumvs Kamal Hossain 50 DLR 180.

Section 5–

If anyagreement or assurance is reached between the parties that cannot debar thecourt from deciding as to where the "welfare" and the"benefit" of the minors lie. Such assurance or agreement cannot haveany bearing on the welfare of the minors which is to be determined by thecourt.

NargisSultana vs Aminul Bor Chowdhury 50 DLR 532.

Section 5–

Even if thechildren prefer to live with their mother due to natural affection orattachment for her, that would not in any way affect the liability of thefather to maintain the children.

BazlurRahman Sikder vs Taher Begum Shamima 50 DLR 612.

Section 5–

In view ofthe advance by way of ijtihad made in the right directions within the bounds ofsunni Law, the enunciation on past maintenance made in 1964 by the Lahore HighCourt being affirmed twice by the Pakistan Supreme Court in this respect shouldnot be overlooked or discarded. The High Court Division was therefore wrong indenying past maintenance to the appellant on the ground of lack of prioragreement.

JamilaKhatun vs Rustom Ali 48 DLR (AD) 110.

Section 5–

Section 3 ofthe Ordinance of 1985 only means that if there are provisions in the Ordinancewhich are different from or are in conflict with the provisions of any otherlaw then the provisions of the said Ordinance will prevail. Section 3 does notdebar the application of Limitation Act to suit filed under the Ordinance of1985. The fact that the Ordinance of 1985 speaks of "Suit","plaint", "Written statement", "decree", etc.clearly attracts the Limitation Act under section 29(2) thereof.

JamilaKhatun vs Rustom Ali 48 DLR (AD) 110.

Section 5–

ResiduaryArticle 102 of the First Schedule, providing for a period of limitation of 6years from the time when the right to sue accrues in respect of a suit forwhich no period of limitation is provided elsewhere in the First Schedule willbe applicable to a suit for maintenance under Ordinance of 1985.

JamilaKhatun vs Rustom Ali 48 DLR (AD) 110.

Section 5–

Undersection 5 of the Ordinance of 1985 it is not only the wife who can file a suitin a Family Court for her own maintenance but also for the maintenance of herchild. It is not correct to say that all the six subjects mentioned in section5 relate to suits exclusively between husband and wife.

JamilaKhatun vs Rustom Ali 48 DLR (AD) 110.

Section 5–

Children ineasy circumstances under Mohammadan Law are bound to maintain their poorparents, although the latter may be able to earn something for themselves.These poor parents may also file a suit in Family Court for maintenance fromtheir opulent children. Similarly, poor or disabled relatives, even servants ofthe wife, can maintain a suit for maintenance under the Ordinance of 1985 undercircumstances enjoined by Mohammadan Law.

JamilaKhatun vs Rustom Ali 48 DLR (AD) 110.

Section 5–

Family Courthas got every jurisdiction to decide as to whether the 'kabinnama' in questionis a genuine and valid document or not and whether any marriage between thepetitioner and opposite party was ever solemnised or not before it decides togrant any decree for dower and/or maintenance.

Shafiqul Huq(Md) vs Mina Begum 54 DLR 481

Section 5–

The childborn during the subsistence of the marriage is a legitimate child and entitledto maintenance till his majority.

Jashimuddin(Md) alias Md Jashimuddin vs Dali Begum and another 56 DLR 358

Sections 5, 10, 11, 13 and 20–

The FamilyCourt constituted under the Family Courts Ordinance (XVIII of 1985) cannotgrant temporary injunction under Order XXXIX, rule 1 CPC in view of the bar ofsection 20 of the Family Courts Ordinance No.18 of 1985.

Since thereis prima facie separation or talak between the petitioner and the OP No.l, theCourt cannot grant any injunction restraining the opposite party Nos.2–4 fromgiving the OP No.1 in marriage to anyone or elsewhere.

Maqbul Ahmedvs Safia Khatun 40 DLR 305.

Sections 5 & 23–

Section 23of the Family Courts Ordinance if read with section 5 will make it clear thatthe provisions of Muslim Family Laws Ordinance shall have to be followed incase of decree passed by the Family Court for the dissolution of a marriage asenumerated in section 5(a) of the Ordinance if it relates to Muslims only.

PochonRikssi Das vs Khuku Rani Dasi and others 50 DLR 47.

Sections 5 & 24–

Sections 5and 24 of the Family Courts Ordinance are also applicable to the members ofother than the Muslim community and they are entitled to avail settlement ofdisputes regarding maintenance, etc and the Family Court has got the exclusivejurisdiction to try those matters.

GaneshChandra Das vs Arati Acharjya 54 DLR 348

Section 5(d)–

Maintenance–Thewife is not entitled to past maintenance. Maintenance can be allowed to heronly from the date of institution of the suit before the Family Court tillthree months after the decree for dissolution of the marriage. Neither thechild nor the person who maintains it can claim past maintenance from thefather unless the same is previously fixed.

Rustom Alivs Jamila Khatun 43 DLR 301.

Section 5(h)–

Therestitution of conjugal right is a reciprocal right thus it is neither discriminatorynor violative of any of the provisions of the Constitution.

Chan Mia(Md) vs Rupnahar 51 DLR 292.

Section 6(2)–

A FamilyCourt like any other Courts has got inherent jurisdiction to decide whether ithas got jurisdiction to entertain a suit.

KrishnapadaTalukdar vs Geetashree Talukdar 47 DLR 591.

Section 16(3B)–

A fresh andseparate cause of action will arise for failure to pay money of each and everyinstallment for the purpose of sending the judgment debtor to imprisonment forhis failure to pay the money under each installment.

MaksudaAkhter vs Md Serajul Islam 51 DLR 554.

Section 16(4) & (5)–

Call it theexecuting Court or the trial Court, it is nontheless the Family Court whichpassed the decree and its power to allow installments even after passing of thedecree is undoubted.

ResimaSultana vs Khaez Ahmed Mojumder 49 DLR (AD) 57.

Section 17–

Remand–TheCourt of appeal under the Family Courts Ordinance is not competent to remand asuit to the trial Court Scheme of the Family Court is quick disposal of a casebetween the husband and the wife and for such purpose under section 20 of theFamily Courts Ordinance provisions of the Evidence Act and the Code of CivilProcedure (except sections 10 and ll thereof) have been excluded. The Court ofappeal below can only decide the appeal and no power to send the case on remandto the Family Court has been given to the Court of appeal below.

Hosne AraBegum vs Alhaj Md Rezaul Karim 43 DLR 543.

Section 17–

The appealbefore the court of the District Judge against an interlocutory order passed bythe Family Court was not maintainable.

Younus Mia(Md) vs. Abida Sultana Chhanda 47 DLR 331.

Sections 17(1) & 20–

Court of theDistrict Judge whether a Family Court–under section 17(1) of the Ordinance anappeal shall lie from a judgment, decree or order of Family Court to "theCourt of the District Judge." The latter being a Civil Court, provisionsof the Code of Civil Procedure would apply to the proceeding before it. Thereis no scope for thinking that the District Judge referred to in the Ordinanceis a persona designata or a Family Court and that provision of Ordinance XLI,rule 19 were not applicable to proceeding arising out of Family Court judgment.

Md Moinuddinvs Amina Khan Majlish 42 DLR 483.

Section 17–

The 'order'in its widest sense may be said to include any decision rendered by a court onquestion between the parties of a proceeding before the court and the same canbe construed or read either final or interlocutory and both are appealable.

AtiqurRahman (Md) vs Ainunnahar 52 DLR 453

Section 17–

The orderunder challenge is an interlocutory order and the same is appealablethis civilrevision petition is not at all maintainable.

FirojulIslam (Md) (Firoj) vs Zahanara Akter 52 DLR 107.

Section 17–

The merefact of first plaintiffs not having preferred an appeal or a cross–appeal orcross–objection would not by itself be sufficient to justify refusal toexercise the power contained in rule 33 of Order XLI of the Code.

HasiburRahman (Md) vs Shakila Begum and another 53 DLR 152.

Sections 17(1) & 24–

Since theword 'Order' has not been defined in the Ordinance it cannot be read to mean asbeing only final order.

CaptainShamsul Alam Chowdhury vs Shirin Alam Chowdhury 43 DLR 297.

Section 17(5)–

The FamilyCourt passed the impugned order rescheduling the mode of payment of thedecretal dues by the petitioner in exercise of his judicial discretion.

Alamgir (Md)vs Habea Begum 52 DLR 157.

Section 17(7)–

Undersection 17(7) of the Ordinance a Subordinate Judge can exercise the appellatepower in such family matters only after an appeal is transferred to him by theDistrict Judge for disposal. He has got no like power of a District Judge totake cognisance of an appeal by way of admission.

Shafiqul Huq(Md) vs Mina Begum 54 DLR 481.

Section 20–

When section20 of the Ordinance says that provisions of the Code "shall not apply toproceedings before the Family Courts" it means that those provisions ofthe Code shall not apply which are in the Ordinance as prescribed modes forconducting judicial business by the Family Courts.

Younus Mia(Md) vs Abida Sultana Chhanda 47 DLR 331.

Section 20–

Section 20of the Family Courts Ordinance is a bar to the application of the CivilProcedure Code in Family Court proceeding with the exception of sections 10 and11 under the Family Courts Ordinance. The lower appellate Court cannot takeevidence as the provisions of appeal in the Family Courts Ordinance does notprovide for taking of evidence. It being special law must be applied strictly.The appellate Court cannot also remand the case to the trial Court as theFamily Court Ordinance does not provide for any such provision.

Saleha Begumvs Dilruba Begum 53 DLR 346.

Section 20(1)–

Court cantake into account subsequent event necessitating amendment by addition of newrelief that may be allowed to do complete justice.

Nazrul IslamMajumder (Md) vs Tahamina Akhtar and another 47 DLR 235.

Section 24–

Since theprocedure under Order XLI, rule 27 is a bar under section 20 of the FamilyCourts Ordinance in a Family Court proceeding only recourse left to the lowerAppellate Court is to fall upon section 24 of the Ordinance to follow theprocedure laid down in Guardians and Wards Act while deciding the question ofguardianship and custody of a minor.

Saleha Begumvs Dilruba Begum 53 DLR 346.

Section 27–

Suit in theFamily Court in the face of earlier suit for the self–same relief in the civilCourt–There is no bar either under the Family Court Ordinance or under the Codeof Civil Procedure in filing two separate suits in two different Courts for theself–same relief. Pending cases in any Court other than the Family Court inmatters within the exclusive jurisdiction of the Family Court may continue insuch other court if filed before the Family Court Ordinance came in force butthere is no bar to withdraw and discontinue a pending case from any other courtand in filing a fresh suit in the Family Court for the self–same relief.

Abdur Rahmanvs Shahanara Begum 43 DLR 599.

Family Courts Ordinance, 1985

MuslimFamily Courts Ordinance [XVIII of 1985]

Section 5(d)–

Whatever bethe meaning of Mataa it is certainly not maintenance as can be claimed withinthe meaning of maintenance under the Family Courts Ordinance.

Hefzur Rahman (Md) vs Shamsun Nahar Begum andanother 51 DLR (AD) 172.

Section 5(d)–

There is aclear direction in respect of a pregnant woman who has been divorced and thedirection is to bear her expenses till she has delivered. In the case of such awoman her period of lddat will be till delivery. It is apparent that themaintenance has been related to the period of lddat.

HefzurRahman (Md) vs Shamsun Nahar Begum 51 DLR (AD) 172.

Section 6(4)–

In the nameof granting general or other relief the Court cannot and would not mount anysurprise on the defendant and make him liable for something which does notarise out of the plaint and, as such, he had no occasion to answer the same.This is merely an extension of the principle of natural justice (ATM Afzal CJ).

HefzurRahman (Md) vs Shamsun Nahar Begum and another 51 DLR (AD) 172.

Section 7(1)(3)(5)–

The MuslimFamily Laws Ordinance, 1961 when interpreted in the light of Articles 8 and8(1A) of the Constitution preserves iddat as laid down in the Holy Qur–an :(Mustafa Kamal J).

HefzurRahman (Md) vs Shamsun Nahar Begum 51 DLR (AD) 172.

Mohammedan Law

MohammedanLaw

Acknowledgement–Witnessesare partisan witnesses totally unworthy of credit–Onus to prove that defendantI (Khorshed Alam) is the son of a prostitute Baramoni, is on the plaintiff, buthe could not discharge it.

KhorshedAlam vs Amir Sultan Ali Hyder 38 DLR (AD) 133.

Acknowledgement–Onusof proof–Status of an individual–When it is assailed much higher degree ofproof necessary–All courts below overlooked this point– Trial Court ought notto have allowed such question to be led in Entire plaintiff's evidence on thispoint should have been discarded–Presumption of law on the point notrebutted–Plaintiff having failed to prove that defendant J was the son ofBaramoni his suit to be dismissed.

KhorshedAlam vs Amir Sultan Ali Hyder 38 DLR (ADJ 133.

Acknowledgementby a man of a child– Case-law on the subject.

KhorshedAlam vs Amir Sultan Ali Hyder 38 DLR (AD) 133.

–Whenacknowledgement established–Onus to rebut in the person who denies marriage.

KhorshedAlam vs Amir Sultan Ali Hyder 38 DLR (AD) 133.

–Legitimacy–For legitimacy valid marriage is essential.

KhorshedAlam vs Amir Sultan Ali Hyder 38 DLR (ADJ 133.

–Whenillegitimacy is proved beyond doubt, by reason of the marriage of his parentsbeing either disproved, etc. cannot be legitimatised by acknowledgement.

KhorshedAlam vs Amir Sultan Ali Hyder 38 DLR (ADJ 133.

–A concubinegiving birth to a son– Such son cannot be legitimate son.

KhorshedAlam vs Amir Sultan Ali Hyder 38 DLR (ADJ 133.

–UnderMohammedan Law, "a person to be legitimate son of another person must bethe offspring of a marriage between his mother and his alleged father and thatany other offspring is the offspring of Zina, that is, illicit connection andcannot be legitimate".

KhorshedAlam vs Amir Sultan Ali Hyder 38 DLR (AD) 133.

–Acknowledgement–Subsequent disowning the acknowledgement, of no legal effect.

KhorshedAlam vs Amir Sultan Ali Hyder 38 DLR (AD) 133.

Custody of minor child–

The personallaw of the parties and the child's welfare doctrine are not in conflict onquestion of custody and even if they were, the welfare doctrine would haveprecedence.

AyeshaKhanam vs Major Sabbir Ahmed 46DLR 399.

Guardianship–

Mother isnot the legal guardian of the immovable property of her minor children thoughshe may be in charge of the same. Her position is no better than that of anyother person who has the charge of the person or property of a minor and she isnothing but "de facto guardian" having no power to convey to anotherany right or interest in the immovable property.

MeherunHossain vs Nazrul Islam 46 DLR86.

Conjugal life–

The court'sdecree that it is wholly up to the wishes of the wife to have or not to haveconjugal life with the husband is a concept contrary to the Islamic tenet ofmarital relationship.

Sheerin AlamChowdhury vs Captain Shamsul Alam Chowdhury 48 DLR 79.

Faith in Quran–

Under theHindu Law clear proof of usage can outweigh the written text of law. But it isnot so in the case of Islamic law. For, it is an article of faith of a Muslimthat he should follow without questioning what has been revealed in the Quranand disobedience thereof is a sin.

Hefzur Rahman (Md) vs Shamsun Nahar Begum andanother 47 DLR 54.

Maintenance for wife–

A personafter divorcing his wife is bound to maintain her on a reasonable scale beyondthe period of iddat for an indefinite period, that is to say, till she losesthe status of a divorcee by remarrying another person.

Hefzur Rahman (Md) vs Shamsun Nahar Begum andanother 47 DLR 54.

'Khula'–

If it soappears that the husband and wife cannot live together in peace and amity andthe wife offers consideration for the dissolution of the marriage she isentitled to get it dissolved by way of 'khula'.

Sheerin AlamChowdhury vs Captain Shamsul Alam Chowdhury 48 DLR 79.

Section 168–

Thetransaction of heba-bil-ewaj is in fact a sale. Therefore, as a sale cannot becompleted without price is paid heba-bil-ewaj also cannot be called validunless ewaj is paid.

Nurul Islamand others vs Azimon Bewa 51 DLR 451.

Section 252–

Mere livingtogether by the petitioner and the opposite party as found by some of the PWsdoes not bring the couple within the bond of marriage.

AnwarHossain vs Momtaz Begum 51 DLR 444.

MohammedanLaw Hizanat (Custody of Infant)

Right of mother to custody of infant children–

The motheris entitled to the custody (hizanat) of her male child until he has completedthe age of seven years and of her female child until she has attained puberty.The right continues though she is divorced by the father of the child unlessshe marries a second husband in which case the custody belongs to thefather–Right of father and paternal male relations to custody of boy over sevenand girl who has attained puberty–The father is entitled to the custody of aboy over seven years of age and of an unmarried girl who has attained puberty.Failing the father, the custody belongs to the paternal relations in the ordergiven in section 355 above, and subject to the proviso of that section–If therebe none of these, it is for the Court to appoint a guardian of the person ofthe minor." Mullah's Principles of Muhammedan Law.

Md Abu BakarSiddiqui vs SMA Bakar 38 DLR (AD) 106.

– Questionregarding hizanat (custody) of a minor boy or daughter not solely dependant onhis or her age but the consideration is the welfare of the minor and this hasassumed to be the determining factor even though the opinion of well–knownMuhammedan jurists may not be followed.

Md Abu BakarSiddiqui vs SMA Bakar 38 DLR (AD) 106.

–No uniformlaw obtains in the Muslim world–Difference amongst the principal jurists.Departure is permissible.

Md Abu BakarSiddiqui vs SMA Bakar 38 DLR (AD) 106.

–Hidayah andFatawa-Alamgiri are the standard authorities in Hanafi Branch of Sunni Law.

Md Abu BakarSiddiqui vs SMA Bakar 38 DLR (AD) 106.

–Rule abouthizanat propounded in the Hanafi law in permissible circumstances, can bedeparted from on consideration of minor's welfare.

Md Abu BakarSiddiqui vs SMA Bakar 38 DLR (AD) 106.

–In mattersof personal laws in Bangladesh Sunni Muslims are governed by Hanafi School oflaw.

Md Abu BakarSiddiqui vs SMA Bakar 38 DLR (AD) 106.

–Motherpreferred to be the guardian of the minor.

Md Abu BakarSiddiqui vs SMA Bakar 38 DLR (AD) 106.

MuhammedanLaw (Gift)

Threeessentials of a gift (Heba) under Muslim Law.

Md Abu BakarSikder vs Monowara Begum 40 DLR 392.

–Delivery of possession under Mohammedan Law. Therequirement of law is substantially met if the delivery of possession is takenor accepted by the donee constructively.

Md Abu BakarSikder vs Monowara Begum 40 DLR 392.

MohammedanLaw (Wakf)

Unauthorisedtransfer for valuable consideration of a wakf property by a previousmutwalli–Limitation period for recovery thereof is 12 years from the death orresignation of the said mutwalli under Article 134B Limitation Act.

Nezamat Alivs Syed Ahmed 38 DLR 45.

–Wakfproperty, alienated by mutwalli––such alienation holds good during the tenureof mutawalli, alienee's possession during mutawalli tenure not unlawful.

Nezamat Alivs Syed Ahmed 38 DLR 45.

–Possessionof the alienee becomes adverse from the time of the death or removal of themutawalli. [Limitation Act (IX of 1908) Article 134B].

Nezamat Alivs Syed Ahmed 38 DLR 45.

–Mutawalli(or Mohant) describing the wakf (or debuttor) property, as his personalproperty while transferring the wakf property does not affect the nature of thewakf (or debuttor)––Such transfer however is not void ab initio.

Nezamat Alivs Syed Ahmed 38 DLR 45.

–Propertyheld in religious trust by manager of the trust–can never be claimed as themanager's personal property even by asserting adverse claim.

Nezamat Alivs Syed Ahmed 38 DLR45.

–Wakfproperty alienated by a previous mutwalli as his personal property–Hissuccessor mutawalli's right to sue for the property will commence from the dateof death or resignation of the previous mutawalli (Limitation Act (IX of 1908)Article l 34B].

Nezamat Alivs Syed Ahmed 38 DLR 45.

Mongla Port Authority Regulations, 1991

Mongla PortAuthority Regulations, 1991

Regulations41(2) & 43(2)–

Compositionof the inquiry committee depends on. the nature of the allegation. If theenquiry committee is to proceed against an employee alleged of disruptiveactivities then regulation 41(2) will apply and in that case the enquirycommittee is to be composed of three members. In case the allegation is in thenature of major offence the enquiry committee under regulation 43(2)(GA) willconsist of two members.

AtiqurRahman vs. Chairman, Mongla Port Authority and another 49 DLR 636.

Regulation43(6), (7) and (8)–

Unlike sub-regulation(8) sub-regulations (6) and (7) of Regulation 43 are not backed by consequence.Therefore sub-regulations (6) and (7) are more directory and not mandatory andthe authority is not bound to give final decision within 15 days from the dateof expiry of seven days given by show cause notice. But the time limit of 180days for giving final decision by the authority, as provided in sub-regulation8, is binding on the authority, as it is backed by consequence and any failureon its part will absolve the accused employee.

AtiqurRahman vs. Chairman, Mongla Port Authority and another 49 DLR 636.

Regulation48–

Regulation48 gives a concurrent jurisdiction to the Chairman and the Board on reviewpetition. Therefore there is no violation of the regulation for disposal of thereview petition by the Chairman alone.

AtiqurRahman vs Chairman, Mongla Port Authority and another 49 DLR 636.

Motor Vehicles Ordinance, 1983

MotorVehicles Ordinance [LV of 1983]

Sections 2(XXVI) & 8–

Truckdrivers union–Question of registration–The Ordinance does not contemplate'apprehension of breach of peace' nor does it empower the Registrar to refuseregistration on the ground of an already registered counter–trade union. LabourCourt is competent to entertain a case from an order of refusal to register atrade union by the Registrar. The drivers of trucks are engaged by the ownersof the trucks and are workers. As workers they have the right to form tradeunion for the purpose of regulating the relation between themselves andemployers for imposing restrictive conditions on the conduct of trade orbusiness.

Pabna MotorEmployees Association vs Members, Labour Appellate Tribunal 44 DLR 265.

Section 139–

Environmentalhazards– Directions to ensure air and atmosphere free from pollution–Urgentpreventive measures to halt sagging environment pollution and degradation ofDhaka city, one of the worst in the world, due to audible vehicular sounds andemission of hazardous black smoke from faulty and arrogant motor vehicles isindeed, overdue. Hence, in the prevailing situation, ad-interim directions assought for and necessary are given.

Dr MohiuddinFarooque and another vs Government of Bangladesh and others 55 DLR 613.

Municipal Administration Ordinance, 1960 & Municipal Committee (Assessment and Collection of Octroi) Rules, 1961

MunicipalAdministration Ordinance [X of 1960]

Section 38 and rules 12 to 15–

The tax duesin the present case can be recovered in the event of default by the owner fromthe occupier as rule 13 provides for such recovering of arrears of taxes, etc.by distress and sales of moveable property.

MstEsarunnessa Bibi vs Amir Hossain 38 DLR (AD) 1.

Section 63–

A MunicipalAuthority while erecting shops and letting them to the shopkeepers servespublic purpose both by rehabilitating shop–keepers and also earning revenue forthe purpose of public utility.

BrahmanbariaPourashava vs Secretary, Ministry of Land Reforms, Government of Bangladesh andothers 51 DLR (AD) 84.

MunicipalCommittee (Assessment and Collection of Octroi) Rules, 1961

Rule 2(1)(7)–

Company wasnot liable to octroi in respect of goods which it brought into the local areaand which were re–exported.

MeghnaPetroleum Marketing Co Ltd and others vs MF Limited and others 53 DLR 368

Rule 4, Item 22, Third Sch–

Liability topay octroi by the Government–Production of a certificate that the propertyimported will be used for official purpose only goes to the matter of levyingthe tax called octroi. The rule does not cast any duty upon the tax collectorto find out the purpose of the Government as· to how they will use their goods.It is the Government or their officer–in–charge of the goods imported into theoctroi barrier to declare how they will use it, for official purpose only orfor any other purpose. Certificate to this effect regarding the use of theproperty is mandatory.

Bangladeshvs Mis. MF Limited 44 DLR (AD) 166.

Muslim Family Laws Ordinance, 1961

MuslimFamily Laws Ordinance [VIII of 1961]

Sections 1–4 & 6(5)–

In theabsence of documentation of permission obtained by the accused–respondent fromArbitration Council the inevitable conclusion is that the accusedrespondententered contract for second marriage without previous permission of ArbitrationCouncil and offence under section 6(5) of The Ordinance 1961 had been committedand he may be fastened with guilt and complainant–appellant could successfullybring home charge against accused–respondent to the hilt.

DilrubaAktar vs AHM Mohsin 55 DLR 568.

Section 4–

Succession–Thedate of death of the daughter of the propositus, whether it was before or afterthe coming into force of the Ordinance, is immaterial. It is the date ofopening of succession which is of material importance.

SheikhIbrahim vs Nazma Begum44 DLR (AD) 276.

Sections 5 & 7–

MuslimMarriage is a social contract and not a sacrament between a man and womanfollowed by recitations from the Holy Quran. The relationship between thespouses is based on the concepts of social justice and adjustments.

KhodejaBegum & others vs Md Sadeq Sarkar 50 DLR 181.

Sections 6 & 7–

Talaq in anyform shall not stand effective and Talaq shall be not Talaq in the eye of lawunless provision contained in section 7(1) is sternly complied with and in theevent of subsistence of existing marriage no man can enter into second marriageand if he enters he shall contribute himself to be punished under section 6(5)of The Ordinance.

DilrubaAktar vs AHM Mohsin 55 DLR 568.

Section 6(5)–

Procedurewhich must be already followed when a husband having a wife, wants to contracta fresh marriage.

Makbul Alivs Manwara Begum 39 DLR 181.

Section 6(5)–

The womanwho is married by the husband without permission, during the existence of otherwife not liable for any offence.

Makbul Alivs Manwara Begum 39 DLR 181.

Section 6(5)–

The plea ofthe husband taken at revisional stage that there was no Union Parishad orChairman to seek permission for second marriage at the relevant time cannot besustained in the absence of any evidence.

MizanurRahman vs Surma Khatun 50 DLR 559.

Section 6(5)–

The offenceunder section 6(5) of the Ordinance compoundable, though not the appellant andthe respondent having arrived at a compromise, dismissal of the appeal uponreduction of the sentence to the extent of the period already served meritsconsideration.

KhandakerAbdul Hannan vs Sayara Begum 56 DLR (AD) 141.

Section 6(5)(b)–

Administratorsof Union Panchayet, Shahar Committees and Pourashavas took over the functionsof the Muslim Family Laws Ordinance from 20–11–72.

AyeshaSultana vs Shahajahan Ali 38 DLR 140.

Section 6(5)(b)–

Marrying a2nd wife without permission of an arbitration council, violates law andpunishable.

AyeshaSultana vs Shahajahan Ali 38 DLR 140.

Section 6(5)(6)–

When a wifeis present: resort to polygamy by taking a 2nd wife can only be bad, whenpermission thereof is given in writing by the Arbitration Council.

Abul Basharvs Nurun Nabi 39 DLR 333.

Section 7–

Divorce–Non–serviceof notice to the Chairman of the Union Parishad under the provision of thissection cannot render ineffective divorce disclosed in an affidavit.

SirajulIslam vs Helana Begum and others 48 DLR 48.

Section 7(1)–

Talaqpronounced by the wife must be communicated to the husband. When thecommunication is over and the husband admits to have received the same, therequirement of section 7(1) of the Ordinance 1961 was complied and thetalaq–e–tawfiz became effective.

SherinAkther and another vs Md Ismail 51DLR512.

Section 9–

Postmaintenance–the court has the jurisdiction to pass decree for post maintenancein an appropriate case.

SirajulIslam vs Helana Begum and others 48 DLR 48.

Muslim Marriages and Divorces (Registration) Act, 1974

MuslimMarriages and Divorces (Registration) Act [LII of 1974]

Section 4–

TheGovernment has the authority to exclude certain area from the jurisdiction ofone Nikah Registrar and amalgamate with others but in so doing notice to showcause should be served upon the existing Nikah Registrar and must show thereasons therefor. When not done so, the order of delimitation is without lawfulauthority and is of no legal effect.

LatifurRahman (Md) vs Ministry of Law and Parliamentary Affairs, Government of thePeople's Republic of Bangladesh and another 49 DLR 434.

Section 4–

When theproviso to section 4 gave unlimited power to the Government to extend, curtailor alter the limits of any area, the sub–rule I of rule 10 cannot be said to bemandatory. This is merely –directory.

Nur MohammadFakir vs Bangladesh and others 50 DLR 71.

Section 4–

The secondproviso to section 4 of the Muslim Marriages and Divorces (Registration) Acthas empowered the Government to extend, curtail or otherwise alter the limitsof any area for which a Nikah Registrar has been licensed whenever theGovernment deems it fit to do so.

Moulvi MdKhurshid Alam vs Bangladesh, Secretary, Ministry of Law, Justice andParliamenary Affairs and others 50 DLR (AD) 82.

Section 4–

Theprovision of the Act and the Rules made thereunder irresistibly show that aNikah Registrar is a public servant.

Kazi ObaidulHaque vs State 51 DLR 25.

Section 4–It is not correct to say there the impugned notifications offendthe principle of natural justice as the petitioner was not given any show causenotice, the Government is well within its administrative power to create anynew area within the provision of law, and in such case no notice is necessary.

Ahsan Ullah(Md) vs Bangladesh, and others 52 DLR 168.

Section 4–

With theintroduction of the 2nd proviso to section 4 of the Muslim Marriages andDivorce (Registration) Act of 1974, rules for carrying out the purpose andobject of the Act were amended and substituted from time to time. Section 6(c)of the General Clauses Act 1897 has no application thereto as there was norepeal of any enactment.

FazlurRahman & 38 others vs Government of Bangladesh and others 53 DLR 237.

Section 4–

Neither theprinciple of natural justice nor question of vested right arises in the way ofpassing an order for curtailment of the area of jurisdiction of the petitionerwithin the permissible limit of area.

FazlurRahman & 38 others vs Government of Bangladesh and others 53 DLR 237.

Section 4–

Rule 10, inits amended form, has been formulated in the public interest. There is noconflict between it and 'the second proviso to section 4 of the Act because theGovernment has retained its power under section 4 of the Act to alter andcurtail the area of a Nikah Registrar's jurisdiction subject to the maximumarea provided by rule 10.

Hafez BazlurRahman vs Ministry of Law, Justice and Parliamentary Affairs and ors 5 6DLR444.

Section 4 Proviso–

TheGovernment has the power under the second proviso to section 4 of the Act toextend, curtail, alter or otherwise alter the limits of any area.

Raisuddin vsBangladesh and others 51 DLR (AD) 152.

Section 4, 2nd Proviso–

The use ofthe words "a Nikah Registrar has been licensed," in the last portionof the above quoted proviso clearly show that the intention of legislature isto extend, curtail or otherwise alter the limits of any area for which a NikahRegistrar has already been licensed.

ManjurulHaque and 12 others vs Bangladesh, represented by the Secretary, Ministry ofLaw, Justice and Parliamentary Affairs, and others 51DLR261.

Section 4, 2nd Proviso–

If it isconceded that petitioners of some of the respective Rules appointed before25–11–82 had acquired any vested right the same has rightly been taken away byamendment made with effect from the said date by inserting 2nd proviso tosection 4 of the Act of 1974.

ManjurulHaque and 12 others vs Bangladesh, represented by the Secretary, Ministry ofLaw, Justice and Parliamentary Affairs and others 51 DLR 261.

Section 6–

In the caseof a marriage, where the right of divorce is delegated, and entered into before1974, Section 6 of the said Act lays down that a Talaq-i-Tawfeez should not beregistered by the Nikah registrar unless the marriage is a registered one underthe Registration Act of 1908, and for the marriages which have taken placesince 1974, the Muslim Marriages and Divorces (Registration) Act, 1974 will applyand an attested copy of an entry in the register of marriages will be requiredfor registration of Talaq-i-Tawfeez.

Atiqul HuqueChowdhury vs Shahana Rahim and another 47 DLR 301.

Section 6–

Govemment isbound to invite fresh applications for appointment of permanent NikahRegistrars.

ManjurulHaque and 12 others vs Bangladesh, represented by the Secretary, Ministry ofLaw, Justice and Parliamentary Affairs, and others 51 DLR 261.

Sections 6 & 9–

Dower in aMuslim marriage forms an inseparable part of the terms of the Kabinnamah andthus as the Kabinnamah is intended to be registered under the 1974 Act, so isthe dower. The Act of 1974 is, in force relating to the registration of Muslimmarriages including dower.

Atiqul HuqueChowdhury vs Shahana Rahim and another 47 DLR 301.

Sections 15 & 16–

By amendmentof the Ordinance of 1961 and the repealing of the Act of 1876, the present Actand Rules provided for registration of Muslim marriages and divorces takingaway the power of issuing licences to the Nikah Registrars from the UnionParishad or Pourashava to the Government and District Registrar.

Manjurul Haque and 12 others vs Bangladesh,represented by the Secretary, Ministry of Law, Justice and ParliamentaryAffairs, and others 51 DLR 261.

MuslimMarriages and Divorces (Registration) Rules, 1975

Rules 5A & 8 –

Mr Razzakhas referred to a decision in the case of Md Aftabuddin vs Government ofBangladesh in an unreported decision in Writ Petition No. 2136 of 1994.

FazlurRahman & 38 others vs Government of Bangladesh and others 53 DLR 237

Rule 10 –

The rightgiven under previous Rule 10 was taken away by subsequent amendment and, assuch, the question of affecting the vested right of the petitioner does notarise.

Raisuddin vsBangladesh and others 51 DLR (AD) 152.

Rule 10 –

Rule 10, inits amended form, has been formulated in the public interest. There is noconflict between it and the second proviso to section 4 of the Act because theGovernment has retained its power under section 4 of the Act to alter andcurtail the area of a Nikah Registrar's jurisdiction subject to the maximumarea provided by rule 10.

Hafez BazlurRahman vs Ministry of Law, Justice and Parliamentary Affairs and ors 56DLR 444.

Rule 10(2) –

Moulvi MdKhurshid Alam vs Bangladesh, Secretary, Ministry of Law, Justice andParliamentary Affairs and others 50 DLR (AD) 82.

Rule 12–

Theprovision of the Act and the Rules made thereunder irresistibly show that aNikah Registrar is a public servant.

Kazi ObaidulHaque vs State 51 DLR 25.

Section 13–

A fixeddeposit receipt is not a promissory note and not a negotiable instrument withinthe meaning of this section.

AnsarulHuque vs Agrani Bank 48 DLR 479.

Narcotics Control Act, 1990

NarcoticsControl Act [XX of 1990]

Section 2(kha), 10(ga) & 3(kha) of the Second Schedule–

Thecontention that unless the aforesaid provisions of laws are made to coexist bygiving harmonious interpretation or the said offending provisions of theNarcotics Control Act are removed by amendment, members of the petitionerassociation as manufacturers of homeopathic medicine and drugs will beseriously affected is not real or justified.

BangladeshHomeopathic Medicine Manufacturers Association vs Bangladesh and others 55 DLR590.

Section 19(1) & Serial (T) or (U)–of the Table–

In theabsence of any law declaring Phensidyl contraband, presence of Chlorpheniraminemaleate and/or codeine phosphate in Phensidyl will not make it contraband as aschedule narcotic– Therefore, carrying or possession of the Phensidyl seized isnot a punishable offence.

Badal KumarPaul vs State 55 DLR 218.

National Sports Council Act, 1974

NationalSports Council Act, 1974

Section 20A(b)–

Since thereare certain allegations hidden, the respondent is required to issue a showcause notice before passing the notice relieving the petitioner of his duty.

Mir DaulatHossain vs Secretary, National Sports Council and others 50 DLR 561.

Navy Rules, 1961

Navy Rules,1961

Rule 14(5)–

The Ruleexcludes the application of principle of audi alteram partem. The President'sOrder under the Rule is not justifiable. Once the petitioner was retired fromhis service in the Navy the question of omission of the words "in thepublic interest" becomes irrelevant.

In view ofthe nature of the job the naval personnel's function, this law cannot be termedas unreasonable and it does not suffer from legal or constitutional infirmity.The supreme command of the defence services of Bangladesh vests in thePresident and all defence personnel hold office during the pleasure of thePresident. As a Rear Admiral the petitioner was a flag officer, and as a flagofficer he was eligible for the post of the Chief of Naval Staff. When thepetitioner was retired from his service as a Rear Admiral in the Navy his rightto hold on to the post of the Chief of Naval Staff came to an end.

Rear AdmiralAS Mustafa vs Bangladesh 46 DLR (AD) 43.

Negotiable Instruments Act, 1981

NegotiableInstruments Act [XXVI of 1981]

Section 4–

PromissoryNote–It is an instrument in writing (not being a bank–note or a currency–note)containing an unconditional undertaking, signed by the maker, to pay on demandor at a fixed or determinable further time a certain sum of money only to, orto the order of, a certain person, or to the bearer of the instrument.

Sonali Bankvs Hare Krishna Das 49 DLR 282.

Section 48–

From readingof section 48 of the Act we do not find that institution of this case underPenal Code is barred under section 48 of the Act by an explicit provision ofthis Act.

Salahuddin(Md) and others vs State 51 DLR 299.

Section 138–

Thecomplainant served a legal notice within 15 days of the receipt of theinformation of return of the cheques. So there is no valid ground for quashingthe proceeding under section 138 of the Act.

HabiburRahman Howlader vs State 53 DLR (AD) 111.

Section 138–

Where thereis no non-obstante clause the jurisdiction of the court, constituted under theCode of Criminal Procedure cannot be taken away or barred–the court belowcommitted no illegality in taking cognizance or framing of charge under thegeneral provision of law.

Moniruzzaman(Md) vs ANM Didar-e-Alam and others 54 DLR 445.

Section 138–

Undersection 138 of the Negotiable Instruments Act an offence is committed if acheque is dishonoured and if payment is not made within 15 days after receiptof a legal notice. It is a settled law that criminal proceeding can beproceeded independently of the civil suit.

Manzur Alam(Md) vs State and another 55 DLR (AD) 62.

Section 138–

The convictrespondent admitted about the loan, issuance of cheques by him and dishonour ofcheques and that a notice under section 138(1)(b) has been given by thecomplainant. Thus, all the legal requirements are present to bring the offenceunder section 138 of the Negotiable Instruments Act.

Amir Hossainvs MA Malek and others 56 DLR (AD) 146.

Section 138–

Admittedly,in the present case the cheque was presented to the bank after expiry of 6months from the date of drawing of the cheque. So, obviously this case undersection 138 of Negotiable Instruments Act is not maintainable in view of therestriction imposed by proviso (a) to the said section. So, the proceeding isliable to be quashed.

MA Mazid vsMd Abdul Motaleb 56 DLR 636.

Section 138(a)–

Cheques werepresented to the bank twice within six months from the date it wasdrawn––Computation of 15 days for serving notice should be done from the dateon which the cheques lastly returned by the bank–This having were been done theapplication under section 561A of Code of Criminal Procedure is misconceived.

HabiburRahman Hawlader vs State and another 55 DLR 199

Section 138(b)–

Thepetitioner would get opportunity to raise the point whether the cheque waspresented within time at the time of framing charge and the question when thecheque was presented to the bank for the 1st time cannot be decided in thisapplication under section 561A of the Code of Criminal Procedure which is adisputed question of fact.

HasibulBashar (Md) vs Dilshed Huda and another 55 DLR 200.

Sections 138 & 141–

Subsequentallegations will not save limitation for prosecution– The requirement under thelaw is that the complaint against non–payment of money has to be filed withinone month of the date on which the cause of action arises–The High CourtDivision wrongly rejected the application for quashing.

SM AnwarHossain vs Md Shajiul Alam (Chand) and another 51 DLR (AD) 218.

Sections 138 & 141–

Even thoughthe case is pre–mature and it was filed before the expiry of 15 days from thedate of receipt of the notice, the proceeding is not liable to be quashed.

SatyaNarayan Poddar vs State and another 53 DLR 403.

Sections 138 & 141–

Admittedlythere was a transaction between the parties and the petitioner issued thecheque in question but the law of limitation stands as an impediment to proceedfurther with the case in view of clause (b) of section 138 and clause (b) tosection 141 of the Act. Time is a great factor of human life specially when itcomes into play for legal purpose. The proceeding of the CR case is quashed.

Abdus Salamvs Md Munshi Rashed Kamal and anr 54 DLR 234.

Sections 138 & 141–

In view ofdiscussions made in the facts and circumstance of the case, there was no otheralternative but to quash the proceeding as the opposite party No. 1 complainanthad earlier taken recourse to clause (b) of section 138 of the Act in anunsuccessful manner which does not in any way give rise to further cause ofaction as cause of action as provided under sections 138 and 141 of the Actarises only for once.

Dr MdMofizur Rahman and ors vs Md Bashirullah and another 55 DLR 630.

Sections 138 & 141–

Taking ofcognisance upon the petition of complaint filed by the Attorney upon dueexamination under section 200 of the Code of Criminal Procedure is"perfectly valid and appropriate".

HashibulBashar vs Guizar Rahman and another 56 DLR (AD) 17.

Newspaper Employees (Conditions of Service) Act, 1974

NewspaperEmployees (Conditions of Service) Act [XXX of 1974]

Sections 9, 10(3) & 11–

"Personaggrieved"– Its meaning and dimension–In our Constitution the petitionerseeking enforcement of a fundamental right must be a person aggrieved. OurConstitution is not at pari materia with the Indian Constitution on this point.The decisions of the Indian jurisdiction on public interest litigation arehardly apt in our situation. The petitioner is not acting pro bono publico butin the interest of its members. The real question in this case is whether thepetitioner has the right to move the writ petition in a representativecapacity. The High Court Division has rightly relied upon the case of 29 DLR188 where the question has been answered in the negative. The petitioner mayrepresent the employers in the Wage Board but its locus standi to act on behalfof its members in an application under Article 102 of the Constitution is justnot there.

BangladeshSangbadpatra Parishad (BSP) vs Bangladesh 43 DLR (AD) 126.

Sections 9, 10(3) & 11–

"Personaggrieved"– Question of locus standi to file writ petition–WhetherBangladesh Sangbadpatra Parishad, a registered association of owners of thenewspapers and newspaper organisations in Bangladesh, is competent to challengethe validity of the constitution of Wage Board and its authority of fixingminimum wages for newspaper employees.

Held–In thefacts and circumstances of the case, the petitioner Bangladesh SangbadpatraParishad is not a "person aggrieved" to question the award of WageBoard or the connected law, as it has nothing to lose or win by the impugnedaward. It is the owners of newspapers and the employees who are affected by theaward and not Bangladesh Sangbadpatra Parishad. This Parishad may represent theemployers anywhere but it has no locus standi to invoke the jurisdiction ofthis Court under Article 102 of the Constitution.

BangladeshSangbadpatra Parishad vs Bangladesh 43 DLR 424.

Regulation No. 11(1)–

From aperusal of the Annexures it appears the respondent acted in his administrative,managerial and supervisory capacity and by no stretch of imagination he is tobe called a worker.

M SanaullahNoori & ors vs Chairman, 3rd Labour Court 53 DLR 362.

Non–Agricultural Tenancy Act, 1949

Non–AgriculturalTenancy Act, [XXIII of 1949]

Amunicipality is not a rent-receiver within the meaning of Non-AgricultureTenancy Act. A person holding land under a municipality is a tenant under itand liable to pay rent.

NarendraNath vs Municipal Committee 39 DLR (AD) 16.

Section 2(5)–

"Non–AgriculturalTenancy" explained–Applicability of the definition of"Non–Agricultural tenant" and conferment of the status of"tenant"– Tenant and trespasser distinguished–The definition willapply prospectively so as to include the successor-in- interest of tenants.

MahaprabhuRam vs Gopal Ram 42 DLR (AD) 154.

Section 7–

Beforecommencement of this Act, tenancy right in a non–agricultural land was governedby the Transfer of Property 'Act, 1882 wherein the position of a tenant wasthat of a tenant–at–will; his interest in the suit land was hot transferable,nor heritable, nor was it capable of being bequeathed. Such rights wereconferred on a non–agricultural tenant, for the first time, under section 7 ofthe Non–Agricultural Tenancy Act 1949; under this section certain classes ofpersons holding non–agricultural land by lease were given non-ejectable rightin view of his ijara kabuliyat followed by continuous possession for a periodof twelve years prior to October 1949.

MdJashimuddin Kanchan vs Md Ali Ashraf 42 DLR (AD) 289.

Section 7(2)–

Under thesection a tenant must show that he had been holding the property in questionfor a period of not less 'than twelve years without any lease.

Gouri Dasand others vs ABM Hasan Kabir and others 55 DLR (AD) 52.

Section 7(2)–

Evidencemust be adduced to show when possession became adverse so that the startingpoint of limitation against the party affected can be found.

Gouri Dasand others vs ABM Hasan Kabir and others 55 DLR (AD) 52.

Sections 7(2) and 88–

Commencementof Act–Ambit and protection of these sections–Benefit of section 7(2) andprotection under section 88 when not available–Limitation, question as to –Onthe date of coming into force of the Act, the appellant was not holding anyland as a tenant and as such the protection of section 88 is not available tohim because the nonagricultural land which he was holding was not comprised inany tenancy– The question of counting 12 years from 1934 does not arise. Withthe death of R in 1939, his successor–in–interest became simple trespassers.

MahaprabhuRam Vs Gopal Ram 42 DLR (AD) 154.

Section 24–

Applicationfor pre-emption under section 24 of the Non-Agricultural TenancyAct–Purchaser's contention that the land sold has been divided by the RevenueOfficer with separate jama created for the land sold not being supported by anyvalid order under law the question of actual separation of the jama by an orderof the relevant authority remains to be determined, after which the presentapplication can be finally disposed of.

Begum KhodezaAkhter vs Hajera Khatun 37 DLR (AD) 212.

Section 24–

Section 24of the Non-Agricultural Tenancy Act provides for filing application forpre–emption in respect of nonagricultural land within a Municipal Area. Thissection has got no manner of application to case of agricultural land situatedoutside the Municipal Area.

Abdul Majidvs Satya Bhoma Nath 39 DLR 233.

Section 24–

Contiguousowner cannot claim pre–emption. Under section 24 of the Non-AgriculturalTenancy Act a contiguous owner of land has no right of pre–emption.

Abdul Majidvs Satya Bhoma Nath 39 DLR 233.

Section24–

Nature ofthe land is determined by the purpose for which it is initially taken. Entry inrecord–of–right that the land consists of hut, garden and pond cannot be takenas showing that the initial purpose was non-agricultural.

Abdul Majidvs Satya Bhoma _Nath 39 DLR 233.

Section 24–

"Nonagricultural land" appearing in the Non–Agricultural Tenancy Act and"holding" in the State Acquisition and Tenancy Act– Whether right ofpre-emption is not extinguished by mere partition but by a partition of theTenancy itself as in SA & T Act.

Sagir Ahmedand others vs Delwar Hossain and others 40 DLR 466.

Section 24–

Co-sharerneed be impleaded in an application for pre–emption under section 24.

Hosne AraBegum vs Mosammat Anowara Begum 37 DLR 154.

Section 24–

Right topre-empt– A party's right to pre-empt when the decree for possession was put toexecution– Decree not executed– But the party remained in possession of a partof the land–Effect.

Abid Ali vsMaleka Khatoon 37 DLR 137.

Section 24–

The suit forspecific performance of the contract having been decreed and the petitionerbeing already in possession of his portion of the land on the basis of contracthe has acquired a right in law and equity to pre–empt land transferred.

Abid Ali vsMaleka Khatoon 37 DLR 137.

Section 24–

A co–sharerin the land transferred and not a co–sharer in the tenancy is entitled topre–empt under section 24 of the East Bengal Non–Agricultural Tenancy Act.

Abid Ali vsMaleka Khatoon 37 DLR 137.

Section 24–

The questionwhether a document sought to be pre–empted is a real transaction or not can beenquired into in a summary proceeding for pre–emption.

AbdulMuhaimin Khan vs Bashiruddin 45 DLR 382.

Section 24–

Parties inpre–emption application–In the absence of any specific provision in the Act asto who is to be made parties, the procedural law, namely Order I, rule 3 orOrder I, rule 10(2) CPC will govern the field.

GolamMohammad vs Sailendra Nath Kanangoe 45 DLR (AD) 86.

Section 24–

It cannot besaid that a case for pre–emption will be bad for defect of party for notimpleading the co–sharer tenants.

Abdur Rahim(Md) and others vs Md Shebul Mia and others 47 DLR 597.

Section 24–

Section 96is confined to agricultural land and, therefore, a right of preemption underthis section cannot be claimed in respect of homestead land within amunicipality.

Mantu Farajialias Jamal Faraji and others vs Mahiuddin Khan 147.

Section 24–

Thepetitioner can maintain the miscellaneous case under section 24 of theNon-Agricultural Tenancy Act even though lands and buildings of five kabalashave been sought to be pre–empted in a single pre–emption case.

KhalilurRahman and others vs Abdur Rahman Bhuiyan alias Zinnat Ali Bhuiyan & others50 DLR 311.

Section 24–

Non-Agriculturalland means a piece of land in joint possession and enjoyment without partitionwhich may form the tenancy or a portion of tenancy.

Syed Sad Alivs Bidhan Chandra Dev and ors 52 DLR 609.

Section 24–

Pre–emptionunder section 24 of Non–Agricultural Tenancy Act is not confined to the landsituated within the municipal area. A non–agricultural land situated in a ruralarea is also pre–emptible,

Karban AliKhan (Md) and others vs Asa/at Khan and others 53 DLR 176.

Section 24–

There is nopresumption of jointness in the Muslim Law. The presumption under the MuslimLaw is that the Muslim families are separate. The purchase made by the motherand the sons are independent purchases and accordingly, the purchases made bythe preemptee Nos. 1–4, who are strangers, is preemptible excluding thepurchase made by the mother by the self–same kabala.

Karban AliKhan (Md) and others vs Asa/at Khan 53 DLR 176.

Section 24–

Sale of aproperty takes effect from the date of the execution of the sale deed and assuch any subsequent agreement for reconveyance of the property cannot defeatthe right of pre–emption.

Captain (Md)Lutfar Rahman vs Md Abu Taher and others 53 DLR 193.

Section 24–

Inpre–emption proceeding one is deprived of one's property through the coerciveprocess of the Court–Unless pre–emptor has a positive case of his beingco–sharer the court upon finding a prim a f 'acie case of co–sharer is notpermitted by law to grant pre–emption.

HiranChandra Dey and others vs Md Abdul Quyum and anothers 54 DLR (AD) 126.

Section 24–

Aftersub–division of the holding and creation of new plots in subsequent survey, orby mutation by the acts of parties, the previous co–owners in the holdingand/or the land cannot be deemed to still continue as such co-owners.

SM NasirulHaque vs Omar Faruque Chowdhury and others 54 DLR 181.

Section 24–

Thesubmission that even after so many transactions since the final publication ofCS record of rights, and the long and exclusive possession by the presentoccupiers on the basis of SA record of rights and/or mutation have not yetterminated the original co-sharership in CS plot cannot be accepted.

SM NasirulHaque vs Omar Faruque Chowdhury 54 DLR 181.

Section 24–

A finaldecree passed in a partition suit or amicable partition though separates anddivides the land for the purpose of possession but does not ipso factoterminate co-ownership in such land till subdivision of the holding anddistribution of rents takes place only in accordance with law.

SM NasirulHaque vs Omar Faruque Chowdhury 54 DLR 181.

Section 24(1)–

As the word'co–sharer' always implies the existence of more than one person jointlyowning, similarly, such joint ownership may be in respect of land of one plotor several plots.

SM NasirulHaque vs Omar Faruque Chowdhury and others 54 DLR 181.

Section 24(1)––

A co–sharerloses his co-sharership in the tenancy or holding by separating his jamathrough a mutation proceeding and cannot apply for pre–emption.

Shah Alam(Md) vs Md Shahidur Rahman and others 55 DLR 214.

Section 24(11)–

Afterpassing of the final decree in a partition suit it is effective between theadmitted co–sharers and for the purpose of a preemption proceeding where thetransfer is made by a co–sharer to a stranger, this question of execution ofthe final decree between the cosharers is not relevant and necessary,

ShofiuddinChowdhury (Md) vs Md Abdul Karim and others 52 DLR (AD) 41.

Section 24(11)(c)–

Pre–empteeclaimed to be a co–sharer in the holding as his vendor of the sale deed gifteda portion of the plot under preemption by a deed of gift executed on 25– 7–85,presented for registration on 12–2–86 after the execution and presentation forregistration of the sale deed under pre–emption–under the circumstances thedeed of hiba was a collusive document created for the purpose of defeating thepre–emption case.

Sufi (Md) vsBabupara (Alamnagar) Jame–Masjid 47 DLR 472.

Notaries Ordinance, 1961 & Notaries Rules, 1964

NotariesOrdinance [XIX of 1961]

Sections 1(a) & 8–

Though it isconceivable for a Notary Public to attest or certify a bank statement, it isdifficult for a court to admit in evidence true copy ofa copy of a Bankstatement even though it is attested by a notary public.

MonjururRahman vs Dr Naimur Rahman. 50 DLR 266.

Section 14–

Whetherexhibit 4 is admissible in evidence in view of section 14 of the NotarialOrdinance–Notarial Act–No reciprocal arrangement between Bangladesh and Indiatill 1980 asserted by the respondent's advocate– Whether there was any suchreciprocal arrangement of notarial act between Bangladesh and India will haveto be proved on evidence by the plaintiffs.

Bimal KantiBiswas vs Custodian of Enemy Property 42 DLR 227.

NotariesRules, 1964

Rule 11(8)–

Though it isconceivable for a Notary Public to attest or certify a bank statement, it isdifficult for a court to admit in evidence true copy of a copy of a Bankstatement even though it is attested by a notary public.

MonjururRahman vs Dr Naimur Rahman 50 DLR266.

NotariesRules, 1964

Rule 11(8)–

Though it isconceivable for a Notary Public to attest or certify a bank statement, it isdifficult for a court to admit in evidence true copy of a copy of a Bankstatement even though it is attested by a notary public.

MonjururRahman vs Dr Naimur Rahman 50 DLR266.

Note Book Prohibition Act, 1980

Note BookProhibition Act [XII 1980]

Section 2(b)–

The impugnedAct does not completely debar publication of 'note–books', it only providesthat a 'note–book' may be published either by the Board itself or under theauthority of it in the same way as text–books are approved or prepared andpublished by it for schools.

BangladeshNational Curriculum and Textbook Board vs AM Shamsuddin 48 DLR (AD) 184.

Sections 2 & 3–

A 'notebook' is nothing more than a 'text book' put in a different but material form.It is not an expression of ideas or opinions with regard to the contents of thetextbook, but it is merely a presentation of the same text book in a differentmanner. The impugned Act by putting the restriction on printing, publishing,etc of note books may well be construed as imposing reasonable restrictionpermissible under Article 39 (2).

BangladeshNational Curriculum and Textbook Board vs AM Shamsuddin 48 DLR (AD) 184.

Oath of Office (Union Parishads) Rules, 1983

Oath ofOffice (Union Parishads) Rules, 1983

Rule 2–

The failureof the Chairman and Members to take oath can be inferred only when the DeputyCommissioner fixes a date of oath within 30 days of Gazette notification andthe Chairman or Members, without good cause shown, fail to take oath on thedate fixed.

Syed HedayetAli vs Chief Election Commissioner and others 50 DLR {AD) 89.

Ordnance Factories Board (Repeal) Act [XIII of 1989]

OrdnanceFactories Board (Repeal) Act [XIII of 1989]

Section 2(2)(Cha)–

Since theterms and conditions of service have not been changed or altered, the employeescontinue to be governed by the Rules i.e. Ordnance Factories Board Ordnance,1961 under which they used to be governed before the repealing Act came intoforce.

SerajulIslam Thakur vs Bangladesh 46 DLR 319.

Original Side Rules of the High Court Division

OriginalSide Rules of the High Court Division

Rule I of Chapter XXXI—

The OriginalSide Rules framed by the Calcutta High Court under Clause 37 of Letters Patent,1865 —have not been preserved by the Law Reforms Ordinance, 1978. The OriginalSide Rules therefore have no existence now in the eye of law. Therefore therecan be no manner or recourse to Rule I of Chapter XXXI of the Original SideRules for preferring an appeal to a Division Bench from the decision of aSingle Company Judge under section 38 of the Companies Act, 1913.

Moqbul Ahmedand another vs Ahmed Impex (Pvt) Ltd and others 48 DLR (AD) 82.

Paris Convention

ParisConvention

Article 6—

Forattracting Article 6 of the Paris Convention there must be proof of well knownor wide use which is very much lacking in the case of the objector. Theobjector has not got his mark registered in this country. So he also cannotclaim any protection under the Convention.

Samah RazorBlades Industries ltd vs Supermax International Pvt Ltd and. another 51 DLR237.

Partition Act, 1893

PartitionAct [IV of 1893]

Section 4—

Legislativeintent behind making the provisions of section 4—Mores of the people andco-sharers' attachment to their ancestral house and their anxiety to preservepurdah and privacy of the members of the undivided dwelling house taken intoconsideration.

Expression"a dwelling house belonging to an undivided family" is to beliberally construed—A co-sharer's prayer to buy up a stranger-purchaser may notbe refused on technical ground. There being no partition by metes and bounds byany previous arrangement the impartible character of the suit properly remainedundisturbed when the suit was filed—Plaintiffs claim is sustainable.

There is notime limit for filing an application under section 4 of the Partition Act.

The claimsof the parties in a case are to be determined with reference to theirrespective position existing at the time of the filing of the suit.

When anapplicant's prayer is allowed under section 4 of the Partition Act, it involvesa kind of forced sale for the stranger-purchaser. The Court would in equitydetermine the valuation of the transferred share on the date of the filing ofthe application for permission to purchase the share of the stranger-purchaser.

Sayesta Bibiand others vs Juma Sha and others 42 DLR (AD) 53.

Section 4—

Suit forpartition filed by the defendant Nos. 1 and 3 who are appellants in this appealby leave—Suit decreed in preliminary form subject to payment of ad valoremCourt fee by the trial Court—The High Court Division modified the decree of thetrial Court by holding that the plaintiff does get saham of 1062—1l2 acre ofland out of a schedule property on partition by metes and bounds—Question aroseas to whether the High Court Division has committed substantial error of law infailing to direct to identify and demarcate. 2125 acre of CS plot No 17 inorder to effect partition of the suitland.

Held : The demarcation of the plaintiff's share out of SA plot No. 1162will be done by the Advocate Commissioner having regard to all principles ofpartition and the defendants can take objection, if any, before the decree ismade final.

Waliullahand another vs Abdul Wahab and others 42 DLR (AD) 55.

Section 4—

The conceptof dwelling house had received a liberal construction (Ref. AIR 1960 Cal 467).The terms "house" or "dwelling house" are ambiguous termsand for the purpose of section 4 of the Partition Act, must be liberallyconstrued. High Court Division exceeded the jurisdiction in setting aside thedecree.

Sree JugalKishori Sarker vs Azizur Rahman 40 DLR (AD) 150.

Section 4—

The purposeof section 4 is to see that a transferee outsider does not force his way into adwelling house in which other members of the transferor's family have right tolive. Once the partition decree is made in preliminary form, the rest is forthe Commissioner. But the Court at that stage is not concerned as to whatdirection should be given to the Commissioner for completing the partition. TheCourt can only give a limited direction after perusing the Commissioner'sreport as to which plot is to be partitioned.

Sree JugalKishori Sarker vs Azizur Rahman 40 DLR (AD) 150.

Section 4—

Theexpression a dwelling house belonging to an undivided family is to be liberallyconstrued. Adjacent buildings, gardens, courtyard, orchard and all that isnecessary for the convenient occupation of the house is a part of the dwellinghouse.

Amena Khatunand ors vs Md Afsaruddin being dead his heirs 1 (ka) Maleka Khatun and ors 50DLR 156.

Section 4—

The strangerpurchaser who is not acceptable to other members of the family can not comeinto the undivided dwelling house and possess it forcibly and section 4 of thePartition Act does not permit it.

Amena Khatunand ors vs Md Afsaruddin being dead his heirs 1 (ka) Maleka Khatun and ors 50DLR 156.

Section 4—

The objectof this legislation is to preserve the sanctity of an undivided dwelling houseagainst the intrusion of a stranger on the basis of purchase of it portion ofsuch a dwelling house from a co—sharer or some of the co—sharers.

Protima Senand others vs Chitra Rani Dey and another 52 DLR 218.

Section 4—

In order to·get the benefit of section 4, it is not necessary that a person must live inthe family dwelling house. It is not residence or occupation but ownership ofthe dwelling house that entitles a person to apply under section 4 of the Act.

NoorjahanAkhter vs A Motaleb & ors 53 DLR 256.

Section 4—

The mainpurpose behind enacting section 4 is to protect and preserve the co—sharer's sentimentand attachment to their ancestral house and also to preserve pardah and privacyof the members and inmates of the undivided dwelling—house. It is further heldin this case that a co—sharer's prayer to buy up a stranger—purchaser may notbe refused on technical ground.

NoorjahanAkhter vs A Motaleb & ors 53 DLR 256.

Section 4—

'Undividedfamily' means simply a family not divided qua the dwelling house; in otherwords, a family which owns a dwelling house and has not divided it. The essenceof the matter is that the house itself should be undivided amongst the membersof the family who are its owners. The emphasis is really on the house whichimparts to the family its character of an undivided family.

HaripadaSaha vs Md Shamsuddin Quraishi and others 54 DLR 606.

Partnership Act, 1932

PartnershipAct [IX of 1932]

Section 6—

Indetermining whether a person is or is not a partner regard shall be had to thereal relation between the parties, taking all the relevant facts together.

MohammadMusa vs Kabir Ahmed 41 DLR (AD) 151.

Section 14—

Partnershipproperty—This section is in the nature of an inclusive definition not properlydefining the expression "the property of the firm". But property,rights and interests in property of four different kinds are included in its firstparagraph which is all partnership properties "subject to contract betweenthe partners." Its second paragraph includes a fifth kind of property andrights and interests in property if the same is acquired with money belongingto the firm "unless the contrary intention appears", introducing alegal fiction which creates a rebuttable presumption. 'The decision of thequestion whether a disputed property is or is not a partnership property woulddepend upon the intention of the partners. Evidence is admissible to show thata contrary intention governed the transaction which may justifiably be gatheredfrom the purpose of acquisition of property and mode in which it has been dealtwith. These considerations are germane to the determination of contrary intention.

MahbubulAlam Chowdhury vs Chaman Ara Begum 43 DLR (AD) 121.

Section 32(3)—

A retiringpartner under section 32(3) read with section 72 of Partnership Act continuesto be liable for any subsequent act of any other partner which would bind thefirm until the public notice as prescribed by section 72 is given.

Md MahmudunNabi vs Mafizur Rahman Manju 42 DLR (AD) 120.

Section 42(c)—

Thepartnership firm has been dissolved automatically by operation of law andbecame non—existent with the death of its partners.

Pubali BankLtd vs Sultana Oil Mills and Soap Factory and others 51DLR323.

Section 69—

Anunregistered firm will only suffer the consequences of non—registration undersection 69 of the Partnership Act.

ManjurRahman Manju vs Mahmudun Nabi 40 DLR 451.

Section 69(2)—

When thesuit properties are not partnership properties the bar of this section againstinstituting the suit in question is not attracted.

MahbubulAlam Chowdhury vs Chaman Ara Begum 43 DLR (AD) 121.

Section 72—

The retirementof a partner is not effective unless and until other partners agree todischarge him of possible liability and a public notice is given under section72. Thus the question remains again whether any pecuniary interest .subsistsfor which the respondent continued. On consideration of the evidence adduced itis found that the respondent was a party to a contract with the UpazilaParishad and: his . pecuniary interest continued even after election as. hewithdrew some security money of the contract after the election.

MahmudunNabi(Md) vs Mafizur Rahman Manju 42 DLR (AD) 20.

Patents and Designs Act, 1911

Patents andDesigns Act [II of 1911]

Section 2(5)—

A design tobe registrable need not also possess artistic merit but it must be new initself. The novelty or originality of a design is judged solely by the eye withreference to the external appearance of the finished articles to which thedesign applied.

NationalFans Ltd vs Md Firoz and another 50 DLR 437.

Section 51A—

For thepurpose of cancellation it is not necessary for the respondent's design to beexact reproduction or copy of the petitioner's design to the minutest detail.It will be enough if they appear to be two species of the same design.

NationalFans Ltd vs Md Firoz and another 50 DLR 437.

Section 51A—

By reason ofregistration the proprietor may claim protection under the act. But entry inthe register is not conclusive thereof and the presumption can be rebutted.

NationalFans Ltd vs Md Firoz and another 50 DLR 437.

Section 51A—

Applicationbefore this Court being a counter-blast of the notice issued for and on behalfof opposite party and when the petitioner has not approached this court withclean hands he is not entitled to any relief as prayed for.

AbdulKhaleque vs National Fans Ltd & another 50 DLR 453.

Section 51A—

No designshall be accounted new or original if it only differs from the earlier designby an immaterial detail, which means that any variation must not be trivial orinfinitesimal which a skilled person might make between the articles for commercialpurpose.

NationalFans Lt vs Haji Md Firoz and another 47 DLR 285.

Payment of Wages Act, 1936

Payment ofWages Act [IV of 1936]

Section 2(vi)—

"Wages"—defined—Includesany sum payable on termination of employment.

RespondentNo. 2 could have applied to the Labour Court under section 34 for determinationof the quantum of the termination benefits.

SekanderMiah vs Chairman, 1st Labour Court, 41 DLR 203.

Section 2(vi)—

Gratuity ofany type, either on discharge, or termination or arising out of a settlement isnot included in the definitive clause as wages.

Shaw WallaceBangladesh Limited vs Tofazzal Hossain son of late Abdul Kader and others 50DLR 22.

Sections 2(vi), 3 & 15(2)—

Not only theperson in employment but anybody competent under section 15(2) of the Act onhis behalf who was in employment can make an application for dues within theperiod of limitation. There is no substance in the submission that anapplication made by a person not in employment is not maintainable.

Editor,Bangladesh Observer, & another vs Member, Labour Appellate Tribunal andothers 50 DLR 606.

Section 7—

Non-paymentof the gratuity does not come within the scope of deduction from wages. Noprovision is made for deduction of gratuity from wages under this section.

Shaw WallaceBangladesh Limited vs Tofazzal Hossain son of Late Abdul Kader and others 50DLR 22.

Section 15—

To comeunder section 15(2) of the Payment of Wages Act the requirements are that thecomplainant must be a worker in a factory and be still employed.

Shaw WallaceBangladesh Limited vs Tofazzal Hossain son of late Abdul Kader and others 50DLR 22.

Section 15—

BWDB andothers vs Chairman, Divisional Labour Court, Khulna and others 55 DLR (AD) 5.

Section 15(2)—

the objectsand purpose of the Payment of Wages Act and the objects and purpose of theEmployment of Labour (SO) Act and Industrial Relations Ordinance are not inpari materia. Their fundamentals are different in nature. A person cannot seekrelief under the Payment of Wages Act for a claim arising out of the StandingOrders Act as that will cause anomaly: Once it is allowed the aggrieved personsmostly will come under section 15(2) of the Payment of Wages Act to avail of alarger period of limitation.

Shaw WallaceBangladesh Limited vs Tofazzal Hossain son of late Abdul Kader and others 50DLR 22.

Section 15(2)—

For notavailing of the forum as provided in section 25 of the Act of 1965 a worker isnot precluded from realising the termination benefits by filing an applicationunder section 15(2) of the Act of 1936.

ManagingDirector, Contiforms Forms Limited and Peasant Trading Cold Storage (Pvt) Ltdvs Member, Labour Appellate Tribunal, Dhaka and others 50 DLR 476.

Section 15(2)—

From thedefinition of 'wages' in the Act of 1936 and in the Act of 1965 it is quiteclear that termination benefit as provided in section 19 of the Act of 1965 isalso 'wages'.

ManagingDirector, Contiforms Forms Limited and Peasant Trading Cold Storage (Pvt) Ltdvs Member, Labour Appellate Tribunal, Dhaka and others 50 DLR 476.

Petrobangla Service Regulations of 1988

PetrobanglaService Regulations of 1988

Regulation 14(4)—

WhenRegulation 14(4) provides for merit-cum-seniority, there is no scope forapplication of the rule of merit alone giving a go-by to the rule of seniorityin the matter of promotion and as such the impugned orders of promotion are notsustainable in law.

ANMBelayet Hossain and others vs Bangladesh Oil, Gas and Mineral Corporation 51DLR 104

Police Officers (Special Provisions) Ordinance, 1976

PoliceOfficers (Special Provisions) Ordinance [LXXXIV of 1976]

Section 3—

Punishmentlike dismissal or removal in respect of a police personnel like the respondent,a Sub-Inspector of Police, which can be awarded by the Inspector General ofPolice, can also be awarded under regulation No. 858 (a) (2) by theSuperintendent of Police.

Governmentof Bangladesh and others vs Md Sharfuddin Mollah 54 DLR (AD) 120.

Section 7A—

TheAdministrative Appellate Tribunal was therefore patently wrong in holding thatthe limitation could not be counted from 14-9-1989 when the Secretary, Ministryof Home Affairs rejected the appellant's application preferred against theappellate order passed by the Inspector General of Police on 21-10-1988. Itseems that the Appellate Tribunal being unaware of the aforesaid Ordinances andunder some misconception of the provisos above, committed error in deciding thepoint of limitation.

ShaikhMustainul Haque vs Inspector General of Police and others 47 DLR (AD) 157.

Police Regulations

PoliceRegulations

Regulation No. 858(a)(2)—

Punishmentlike dismissal or removal in respect —of a police personnel like the respondent,a Sub—Inspector of Police, which can be awarded by the Inspector General ofPolice, can also be awarded under regulation No. 858 (a) (2) by theSuperintendent of Police.

Governmentof Bangladesh and others vs Md Sharfuddin Mollah 54 DLR (AD) 120.

PortAuthorities Land and Buildings (Recovery of Possession) Ordinance [IX of 1962]

Sections 2(b), 3(3), 4(1) & 5(2)—

If theCourt, the Tribunal or the body performing function(s) of judicial orquasi—judicial nature exercises power of revision or review or, in other words,revises or reviews its order in the absence of being not vested with the same,it acts without jurisdiction.

Chairman,Chittagong Port Authority vs Khadiza Khatun and others 50 DLR 195.

Power Development Board (Employees) Service Rules, 1952

PowerDevelopment Board (Employees) Service Rules, 1952

Rules 4(b)(c),4(6)—

Power DevelopmentBoard disqualified the petitioner from promotion to a higher post merely on theground of academic disqualification (he was not a graduate). This the Board wasnot entitled to do under the rules of the Bangladesh Power Development Board(Employees) Service Rules, 1982.

MM Ismail vsBPDB 39 DLR 207.

Practice and Procedure - Part I

Practice andProcedure

When theappellate Court does not differ with the findings and conclusions arrived at bythe trial Court, it is not required to re—state the evidence and the reasoningsfrom which such concurrence of opinion flows.

Abdu Latifvs Attar Ali 42 DLR 115.

Disputedfacts cannot be decided in writ jurisdiction. So, there is no doubt that avital question of fact as to whether this brick—field produces common bricks orceramic and refractory bricks is involved in this case and this fact isdisputed. It also appears that on a decision of this disputed fact, a decisionas to whether the Government order discontinuing gas supply to certain classesof brick—fields is applicable to this brick—field as well. Such disputed factscannot be decided by this Court in writ jurisdiction.

ConforceLimited vs Titas Gas Transmission 42 DLR 33.

Carrier is anecessary party in case of marine insurance but absence of the carrier is notvery material in this case.

Lastly, itmay be stated that the carrier is no doubt a necessary party in a case of amarine insurance but in the present case the goods were taken delivery from thecarrier apparently in good condition and after it was opened at the factorypremises of the plaintiff it was detected that the wired glasses were broken.At the time of taking delivery from the carrier a clean receipt was given andthe goods were discharged in good condition. Thus in the facts of the case, wedo not find that the absence of the carrier is very material in the presentcase.

MercantileFire General Insurance Co vs Bata Shoe Co 42 DLR 45.

—In thepresent case the respondent No. 1 obtained the impugned ex parte order from theHigh Court Division which could not have been passed if a Rule was issued andthe appellants appeared and pointed out that the report of the AdvocateCommissioner had already been submitted—This only emphasises the necessity ofalways hearing the other side before an order touching the rights of theparties is passed.

MoslemaKhatun vs Md Jshaque 42 DLR (AD) 72.

—Even thoughthe learned Assistant Judge has not come to any definite finding as to · theservice of summons upon the appellant and having regard to all the factsnoticed and observation made, there is no necessity for further determinationof the question of the service of summons upon the appellant—The order of thelearned Assistant Judge has rightly been set aside by the High CourtDivision—Appeal dismissed.

Reazul HoqueMolla vs Afizullah Mollah 42 DLR (AD) 74.

—When thewrit petition was filed on the ground that the appellant was defaulter, theproper place to raise the question was the election tribunal.

Farid Mia vsAmjad Ali 42 DLR (AD) 13.

—Minors whohad become major could discover interest in the suit property at any stage ofthe proceeding—High Court Division followed the same technicality as theSubordinate Judge overlooking the interest of justice in the matter.

Sukumar Senvs Gouranga Beoy Dey 42 DLR (AD) 18.

—Order ofre-instatement of the dismissed employee passed by the employer subject to hisunconditional withdrawal of his pending writ petition against the saiddismissal—Reinstatement order not complied with by the employee withinreasonable time.

Held: Order or re-instatement has already spent its force and is nolonger available to the petitioner (employee).

Nurul AminChowdhury vs Chairman, 2nd Labour Court, Dhaka 42 DLR 217.

—If thethird party petitioner had preferred an appeal before the Appellate Divisionand the Appellate Division had set aside the aforesaid finding of the HighCourt Division on any ground whatsoever then that judgment could not have anyefficacy at all. But as long as the said judgment is not appealed against andset aside, its findings and decisions remain binding on both the parties.

GolamMorshed vs Farhad Jahan 42 DLR 223.

—Claim andcounter claim between the petitioner and the Agrani Bank—Petitioner (Appellant)claimed a sum of Taka 75,55,020.28 paisa after adjustment in the suit—TrialCourt allowed prayer for mandatory injunction—Appellant contended that theimport passbook issued by the CCIE could not be a security for the purpose ofBanker's general lien within the meaning of section 171 of the ContractAct—High Court Division issued order directing the petitioner to furnishsecurity to the extent of the claim of the bank where—upon the defendant Bankis to return the Import pass book either to the CCIE or to the norminated bankof the petitioner and set aside the order of mandatory injunction.

Held: The Court will not decide a point especially in the interlocutorymatter which will not advance the cause of justice. It will merely delay theprocess of coming to a conclusion as to claim and counter—claim which can onlybe thrashed out in the pending suit.

The DhakaDyeing and Manufacturing Co. vs Agrani Bank 42 DLR (AD) 60.

—Servicematters—Contention of the petitioner regarding his unblemished career in theTCB and counter—contention of the employer TCB with regard to the petitioner'svarious involvements in departmental proceedings and criminal cases—It is notthe Court sitting in this jurisdiction (writ jurisdiction) to decide whetherthe petitioner's ACR was without any blemish or TCB's contention with regard tothe service career of the petitioner is the correct version.

Mirza MdAbdullah-ar-Rabbani vs Bangladesh 42 DLR 258.

—Court findsno compulsive argument to depart from the past and initiate a break.

AbdulMotalib vs Iman Ali 42 DLR (AD) 123.

—Affidavitnot made before the Magistrate or Affidavit Commissioner—High Court Divisioncorrectly refused to act on his unsworn declaration.

In a writproceeding the petitioner is not entitled to make out a case only in hisaffidavit-in-reply. A departure from this norm can only be made in exceptionalcircumstances for making complete justice in a matter.

Dr SyedMatiur Rob vs Bangladesh 42 DLR (AD) 126.

—The viewtaken by the learned Single Judge that the rejection of a nomination paper “isnot part of election but it is a pre-election dispute” and therefore outsidethe scope of the Election Tribunal created under section 26 of the Ordinance iserroneous.

Acceptance/rejectionof nomination paper not having been included in the definition of election thebar to the suit was not applicable to this case—Narrow meaning of the word"election" not acceptable.

Section 26of the Union Parishad Ordinance has put a clear bar to the determination of anelection dispute by any Court except the Election Tribunal—Cancellation of thedefendant's election and direction for holding a fresh election are outside theambit of a temporary injunction.

"Electiondispute"—Manner of determination of—"Election" includes thewhole election process passing through several stages upto the final stage.

Law does notcontemplate intervention of any Court during any intermediate stage of theelection process.

Rafiqul Alamvs Mustafa Kamal 42 DLR (AD) 137.

—Gratuitousfinding and relief—If the precise title to which the appellant lays his claim isnot supported by evidence on record, the Court cannot find out another sourceof title for him by way of gratuitous relief.

MohaprobhuRam vs Gopal Ram 42 DLR (AD) 154.

—Munsifs andMagistrate working in the new Upazilas function independently of UpazilaNirbahi Officers.

State vsAbdul Karim Sarker 37 DLR 26.

—AppellateCourt to be very cautious about reversing the finding of facts by the trialCourt.

Dula Meah vsMd Ibrahim Khalil 37 DLR 93.

—AppellateCourt not having the opportunity of seeing and hearing any witness examinedbefore the trial Court should be extremely careful in reversing the finding offacts by the trial Court.

Dula Meah vsMd Ibrahim Khalil 37 DLR 93.

—Decisiondepending on assessment of oral evidence—Excepting some special features theappellate Court should hesitate to disturb trial Court's finding on fact.

Dula Meah vsMd Ibrahim Khalil 37 DLR 93.

—In theinterest of order and security an individual political right must give way tothe higher interest of the society.

Whenordinary law does not allow bail the same cannot be granted on the pretext ofpolitical right—Bail granted by the court below cancelled.

MdShahabuddin vs The State 37 DLR 196.

—Court'sparamount responsibility is to render justice in a case upon hearing both thesides.

Nurul Huq vsSonali Bank 39 DLR 223.

—Bargain maybe onerous, but there is nothing unconscionable. Azharul Islam vs Idris Ali 39 DLR342.

—The lawdoes not contemplate an ex parte hearing when the defendant fails to file awritten statement.

Adamjee JuteMills vs Chairman, Labour Court 39 DLR 11.

—In adispute over immovable property question of title to be fully decided—Necessaryparty as distinguished from a proper party—A necessary party is one, in whoseabsence no court can pass an effective decree in a suit. Whereas a proper partyis he whose presence is necessary in order to enable the court to effectivelyand completely adjudicate and settle all questions involved in the suit.

Nur Mohammadvs Mia Ashraf Ali 39 DLR 325.

—Where asuit is at its very inception not in law maintainable, the contention that thesuit is not maintainable because of malafide does not arise.

Nur Muhammadvs Mainuddin 39 DLR (AD) I.

—Courts torender justice according to law irrespective of the consideration that itentails suffering to a particular party.

Nur Muhammadvs Mainuddin 39 DLR (AD) 1.

—Court'sdecision—A decision is to be given on the facts litigated upon and any otherobservations are to be avoided which do not strictly call for adjudication.

SMS Samityvs Bangladesh 39 DLR (AD) 85.

—Moderngovernment's various functions—Writ jurisdiction cannot be invoked whenseeking damage against the Government for breach of contract.

SMS Samityvs Bangladesh 39 DLR (AD) 85.

—When theGovernment does not function of setting hat, bazar, etc. it performs functionsin connection with the affairs to the republic, as the sovereign authority. Insuch matter writ jurisdiction will lie.

SMS Samityvs Bangladesh 39 DLR (AD) 85.

—Specialprocedure for disposal of a case triable under a special Act (eg PrintingPresses and Publications Act of 1973) when not specially provided for in thespecial act a private complaint under CrPC is entertainable.

Delwar Alivs Sajedul Haque 38 DLR (AD) 52.

—When someprinciples of law or procedure violated leading to miscarriage of justice,higher court can interfere.

KhorshedAlam vs Amir Sultan Ali Hyder 38 DLR (AD) 133.

—Onus ofproof wrongly placed by the High Court Division and courts below upon the defendant,contrary to law.

KhorshedAlam vs Amir Sultan Ali Hyder 38 DLR (AD) 133.

—Authority'sadministrative discretion—Court's function therein. The Judicial Committee ofthe House of Lords were of the view that the conduct of a public authoritybecomes unreasonable when it is seen that no sensible authority acting with dueappreciation of its responsibilities would have decided to adopt. Lord Diplockobserved-

The veryconcept of administrative discretion involves a right to choose between morethan one possible course of action on which there is room for reasonable peopleto hold differing opinions as to which is to be preferred.

It was forthe Secretary of State to decide that it is not for any Court of law to·substitute its own opinion for his, but it is for a Court of law to determinewhether it has been established that in reaching his decision unfavourable tothe council he had directed himself properly in law and had in consequencetaken into consideration the matters which on the true construction of the Acthe ought to have considered and excluded from his consideration matters thatwere irrelevant to what he had to consider."

A MannanKhan vs Bangladesh 38 DLR (AD) 201.

—Court hasno duty to offer unsolicited advice as to what the parliament should or shouldnot do.

Sheikh AbdusSabur vs Returning Officer 41 DLR (AD) 30.

SuperiorCourt's practice in dealing with appeal when two questions are debated. When inan appeal two questions are debated, namely, whether the attachment order, wasbad and the money execution case was validly filed, Superior Court in dealingwith the appeal though takes the view that the interlocutory matter asunjustified eg attachment order and allows the execution case to proceed itsnormal course, the appeal is allowed in usual course. Hence the appeal shouldhave been allowed with the lien the has been given by law under section 170.

MohammadMeah vs Pubali Bank & others 41 DLR (AD) 14.

Practice and Procedure - Part II

Practice andProcedure

—Misreadingof evidence is a ground for interference but misappreciation of evidence is nota ground for such interference.

Misreadingof evidence is a ground for interference, but misappreciation of evidence isnot. A finding which is inconsistent with the evidence on record must call forinterference in second appeal.

Again, if adecision of the lower appellate Court consists of both oral and documentaryevidence but a part of the documentary evidence is misunderstood, it will notprovide a ground for interference when the document does not form thepreponderance of the evidence.

NaimuddinSardar vs Md Abdul Kalam 41 DLR (AD) 3.

—Thejudiciary has a duty to see that the administration of justice functionsproperly.

Anwar HusainChowdhury vs Bangladesh 41 DLR (AD) 165.

—High CourtDivision not to disturb concurrent finding of fact arrived at by the trialCourt and the lower appellate Court regarding the plaintiffs exclusivepossession over his specifically demarcated share.

Moharram Alivs Mohammad Madhu Mia 41 DLR (AD) 92.

—It will beseen that in all the amending acts prior to the Eighth Amendment the samepractice as in the present case relating to long title was followed. TheConstitution (Fourth Amendment) Act 1975 (Act II of 1975) by which not only alarge number of articles were amended but chapter after chapter were substitutedand added bore the same title as in the present case.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

—Mandatoryrequirements substantially fulfilled. President's consultation with ChiefJustice.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

—Whenprovision of Constitution or law is violated, the Supreme Court exercises itspower of review in pursuance of its constitutional duty, not suo moto but atthe instance of an aggrieved party and with great restraint.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

—The importof the single word uphold is no less significant or onerous than that of thethree words 'preserve, protect and defend'; In either case the burden is thesame. And the Court carries the burden without holding the swords of thecommunity held by the executive or the purse of the nation commanded by thelegislature.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

—In themidst of such a situation the impugned order was passed the effect of which wasfor all practical purpose a closure of the shop for an indefinite period. Thisis neither permitted by law nor desirable for other considerations to which theDepartment of Narcotics and Liquor has referred to in their letters.

GopalChandra Shah vs Deputy Commissioner 41 DLR (AD) 60.

Election dispute—Election result controversial—

When HighCourt Division found the result controversial, it should not have interferedinto such controversial matter and resolving them by mere affidavit whenquestions of facts were disputed—High Court Division's order is erroneous.

In this casethe Election Commission has directed the acceptance of the result given by theReturning Officer on the basis of the result given by Presiding Officer, theaggrieved parties can always raise this matter before the Election Tribunal andit is nobody's case that the order of the. Election Commission is immune fromchallenge before the Tribunal. When the learned Judges of the High CourtDivision have found the result controversial, with respect, the learned Judgesshould not have interfered into such controversial matter and resolving them bymere affidavit when questions of fact were disputed. The order of the HighCourt Division was erroneous.

Nazir Ahmedvs Bangladesh Election Commission 41 DLR (AD) 87.

—Rules ofpleadings in England—Distinction between pleading law and raising a point oflaw in a pleading.

In Englandunder RSC Order 18, rule 11 "a party may by his pleading raise any pointof law. There is a vital distinction between pleading law, which is notpermitted and raising a point of law in a pleading which is permitted under RSCOrder 18, rule 11. Pleading law obscures or conceals the facts of the case;raising a point of law defines or isolates an issue of question of law on thefacts as pleaded (Annual Practice, 1965 p 370)."

MohammadMiah vs Pubali Bank 41 DLR (AD) 14.

—A party mayat the trial raise a point of law open to him even though not pleaded (SeeIndependent & Co vs Knowles 19623, All ER 27). Hence the objection that theplaintiff did not mention lien in his pleading, to my mind, becomes untenable.

MuhammadMiah vs Pubali Bank 41 DLR (AD) 14.

—Lien of theplaintiff for retaining goods for plaintiffs remuneration.

The upshotof the whole discussion is that the Bank's right has not been affected by suchattachment order. Since the suit has been decreed the lien of the plaintiff forretaining the goods for his remuneration remains unchallenged because there isno contract to the contrary between the Bank and the borrower.

MuhammadMiah vs Pubali Bank 41 DLR (AD) 14.

—When nouseful purpose will be served in allowing the restoration of appeal and theplaintiff will be driven to a fruitless litigation instead of being benefittedin any manner if restoration is allowed, the impugned order does not call forinterference.

SanataunessaBewa vs Haipatullah Sarker 41 DLR (AD) 105.

Bias ormalafide of little use unless based on facts—Allegation of bias and malafidecannot be allowed as the Chief Engineer against whom the same was made was noteven made a party in the writ petition.

Mereincantation of bias or malafide can be of little use unless they are based onfacts. Then again any submission on the basis of bias or malafide cannot infairness be allowed at this stage because the Chief Engineer against whom thesame is alleged was not even made a party in the writ petition.

MaziburRahman vs Chairman, DIT41 DLR (AD) 131.

—Appellant'ssuit pending for 4 years—On the pretext of the suit being pending the decreeholder cannot languish indefinitely—Stay for a reasonable time for the suit tobe disposed of can be granted.

Soleman Miahvs Jairun Nessa 41 DLR (AD) 104.

—Staygranted for 4 months more from date during which the suit is to be disposed ofbut on expiration of which the execution case will proceed.

Soleman Miahvs Jairun Nessa 41 DLR (AD) 104.

—Summarymanner in which High Court Division dealt with the grave issues ofconstitutional interpretation involved in the matter was not fair—Leave wasgranted for an authoritative pronouncement on the important question of publicimportance which had been raised.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.

—Thefunction of the court in reality is to interpret the law in its ordinary sense andnot to usurp the function of the law makers.

Warish Miahvs Secretary, Ministry of Local Government 41 DLR 51.

—Examinationof Annexure 'A' which in its turn requires elaborate investigation warrantingproofs which is not the function of this court and it may cause prejudice toeither party if the same be taken into consideration under summary proceeding.

A MukitChowdhury vs Chief Election Commissioner 41DLR57.

—Electionrights are not common law rights. . They are the creation of a statute and shouldbe exercised only in the manner in which the law which creates them provided.

Jalal UddinAhmed vs Matin Rahman Khan 41 DLR 77.

It is nowwell settled that the term "election" embraces the entire process ofelection and not only the taking of poll and subsequent declaration of result.It has been held in the case of Md. Nazir Hakim vs Said Muhammad and anotherPLO 1962 (WP) 421 that the election is a single process from the date ofpublication of the electoral roll to the date on which the result of theelection is declared, like a chain with a number of links.

Jalal UddinAhmed vs Matin Rahman Khan 41 DLR 77.

—Electionrights are not Common Law rights—They are creation of the special law and haveno existence of their own apart from the laws creating them—The suit inquestion by a citizen who has no right outside the special law cannot bemaintained.

There is nodenying the fact that election rights are not common law rights. They are thenew creation of the special law that is the election laws and naturally have noexistence apart from the law creating them. Generally speaking, a citizen assuch unless he is a voter has even no part to play in relation to the rightscreated by the special law.

Outside thespecial law there is no right to dispute an election. As such he does notpossess any legal character or status to challenge the action or decision ofthe election authority. In this view of the matter it may be well said that thesuit by a citizen cannot be maintained.

Rights of avoter cannot be conceived of detached from the election Jaws creating thoserights—The plaintiff as a voter has not been legally aggrieved by the order ofthe Election Commission not to hold fresh poll in the centre. So the rights ofa voter cannot be conceived of detached from the election law creating theserights. Generally speaking, the rights and privileges of a voter are confinedto proposing or seconding the name of a person qualified to be elected asmember or chairman and to cast his vote in the election. In the instant casethe opposite party—plaintiff is a candidate for chairmanship and it is not hisplea that he was not allowed to cast his vote. So as a voter the plaintiffcannot be held to have been legally aggrieved by the order of the ElectionCommission not to hold fresh poll in a centre.

MostafaKamal vs BD Habibullah 41 DLR 197.

— The trialCourt will not pass a decree if the plaintiff fails to ascertain and determinehis land correctly.

Maulana AbulMotin vs Shah Alam Bhuiyan 41DLR243.

—Court isnot to keep alive an order which is opposed to the benefit of the workers andwas obtained by suppressing material facts in Court.

KPM SramikKarmachari Union vs Registrar, Trade Union 41 DLR 262.

—Estoppel byjudgment—The issues that have now been raised in the present writ petitioncould very well be incorporated in the earlier writ petition at the time of itsfiling or the petitioner could have raised the issue as soon as the facts weredisclosed during the tendency of the earlier writ petition—It is hit by theprinciple of estoppel by judgment.

Abdus Salamvs The Chief Election Commissioner 41 DLR 324.

—Electiondispute—Question of fact—No amount of consent by the respondent or any electionofficial or no amount of agreement between the parties can confer jurisdictionon the writ Court to give a finding of fact on a matter which is basically anelection dispute.

Abdus Salamvs Chief Election Commissioner 41DLR324.

—The presentcases, in my view, are fit and proper where although the appeals are notmaintainable, the memorandums of Appeal should be treated, for the ends ofjustice, as applications for revision which the learned Counsels for theappellants have prayed for.

Zehad Ali vsKhorshed Ahmed 41 DLR 336.

—Expression"obligation" included every duty that is enforceable in law—A courtof law would protect only rights that are known to law — The petitioner mustalso show that those rights existed in his favour.

AnwaraKhatun vs Geasuddin Ahmed 41 DLR 474.

—A court oflaw should always guard itself against interpreting and· construingdisqualifying laws before dislodging a people's representative who holds publicoffice elected through a democratic process.

Thepetitioner before us is member of the public. He was not a contesting candidatein the said election. He has no personal interest nor is he personallyaggrieved in the election, but the Constitution has given him the right tochallenge the holding of public office by another if under the law that personis not authorised to hold such office, He will not suffer any loss or achieveany gain on the result of this writ petition. He will simply· vindicate thepeople's right. But if the respondent No.1 loses this case, he will definitelysuffer irreparable loss and injury as he will lose his position as an electedrepresentative. ·In that view of the matter we consider and construe theprovision of section 7(2)(g) of the said Ordinance strictly and resolve anydoubt against the petitioner and in favour of the respondent No. 1. A Court oflaw should always guard itself in interpreting and construing disqualifyinglaws before dislodging a people's representative who holds a public office andbefore taking away his valuable legal right which has accrued to him through ademocratic process of election.

Abu TaherMiah vs Farazuddin Sarker 41DLR543.

—When acriminal Court is in seisin of the case against the detenu, the passing oforder of detention is a colourable exercise of power.

NabilaChowdhury vs Government of Bangladesh 41 DLR345.

—Estoppel byjudgment—The Corporation will be estoppel from raising defences already takenby them in previous writ petitions which were· decided against it finally andconclusively.

MirzaShamsuddin Beg vs Bangladesh 41 DLR 358.

—The law ofcontempt acts in personam—Contempt Rule issued by designation upon the DeputyCommissioner Moulvi Bazar is, therefore, of no consequence.

AshfaqueHossain vs Bangladesh 41 DLR 364.

Practice and Procedure - Part III

Practice andProcedure

—Thequestion of prejudice does not arise. Unless the judgment debtors. get a copyof the kabala, they are not in a position to say what objections they had tothe draft and when they do not know their own objections yet, they cannot beexpected to tell this Court what prejudice has been caused by the failure ofthe Court to give them a copy of the draft document.

Majeda Begumvs Khoda Box Molla 41 DLR 392.

The lowerappellate Court is not debarred from deciding the appeal both on point oflimitation and on merit after considering the evidence on record.

Mahmudul Huqvs Mst Golap Bia 41DLR314.

Plea ofminority of plaintiff No. 1— Motive—Lower appellate Court rightly and legallynegatived the plea of motive on consideration of evidence.

Mahmudul Huqvs Mst. Golap Bia 41DLR314.

—Conduct ofthe petitioner in obtaining stay from the writ Court by suppressing materialfacts. No wrong was committed when the writ petition was· dismissed summarilywith an observation that simultaneous remedies from different forums are notcontemplated in law.

AwladHossain vs Haji Monoruddin Ahmed & others 40 DLR (AD) 270.

—The pointin respect of land holding limitation could have been raised by raising anissue of fact which the appellant never did at the revision stage in High CourtDivision and upon general principle the pre-emptee appellant is not permittedto raise any issue of fact for the first time before the Appellate Division.

AzizurRahman vs Bhayetullah 40 DLR (AD) 224.

—Theconcurrent finding arrived at by both the trial Court and the lower appellateCourt cannot claim immunity from interference as the very basis of the findingis misconception as to which tenders are relevant in the suit.

MozherSowdagar vs Z Alam 40 DLR (AD) 62.

—Clearfinding by the appellate Court as to the payment of consideration and also ofthe transferee having the custody of the document.

Held: The court committed no error in finding that the transaction wasa real one.

Ala Meah vsAli Ahmed 40 DLR 26.

—The findingis essentially a finding of fact which the learned Subordinate Judge hasarrived at on consideration of the evidence on record after fully appreciatingthe principles of law applicable in the facts of the case.

Ala Meah vsAli Ahmed 40 DLR26.

—Caseremitted to the first appellate Court for determination of the question afterplaintiff's failure to prove his claim of benami.

Ala Meah vsAli Ahmed 40 DLR 26.

—SuperiorCourts do not permit ex parte hearing as a general rule. This being a suit forrecovery of heavy amount of money, the door of justice cannot be shut bypenalising the opposite parties for their delay in filling the writtenstatement.

KDHLaboratories vs Pubali Bank 40 DLR 1.

—Question offacts cannot be resolved on affidavit in writ matters.

Abdul Karimvs Chief Election Commissioner 40 DLR 553.

—Deciding anissue—the SCC Judge has not at all applied his mind to the various contentionsraised, Parties may raise the issue (that of validating and then cancelling thevalidation of the power of attorney) once against at the appropriate timebefore the sec Judge who will take note of submission and give his decision onthem.

Anath BandhuGuha vs Babu Sudhangshu Shekhar Halder 42 DLR (AD) 244.

—A Courtwill not decide a point which does not strictly call for adjudication in thefacts and circumstance of the case—Validity of Notification 440lLl76 notexamined by Appellate Division.

Commissionerof Taxes vs Shahabuddin Ahmed 42 DLR (AD) 162.

—Gratuitousfinding and relief—Appellant's case was one of acquisition of title bysettlement which was not proved on trial—The Trial Court conferred title on himon a gratuitous finding of adverse possession, unwarranted by pleading. Thegratuitous conferment of title was uncalled for in a suit for partition—If theprecise title to which he lays his claim is not supported by evidence onrecord, the Court cannot find out another source ·of title for him by way ofgratuitous relief.

MahaprabhuRam vs Gopal Ram 42 DLR (AD) 154.

—When therewere conflicting decisions between Division Benches, the learned Single Judgeshould have referred the matter to a larger Bench instead of taking uponhimself the responsibility to decide this important question of law.

Rafiqul Alamvs Mustafa Kamal 42 DLR (AD) 137.

—Technicalquestions—Such questions as to payment of ad valorem court fee and non-filingof copy of the concerned decree are passed off and the court goes into the realquestion raised so as to see whether the appeal before it contains anysubstance.

JashimuddinKanchan vs Md Ali Ashraf 42 DLR (AD) 289.

Re-instatement—Orderof re-instatement of the dismissed employee passed by the employer subject tohis unconditional withdrawal of his pending Writ Petition against the saiddismissal. Re-instatement order not complied with by the employee withinreasonable time.

Held: Order of re-instatement has already spent its force and is nolonger available to the petitioner (employee).

Nurul AminChowdhury vs Chairman, Second Labour Court, Dhaka 42 DLR 217.

If the thirdparty-petitioner had preferred an appeal before the Appellate Division and theAppellate Division had set aside the aforesaid finding of the High CourtDivision on any ground whatsoever then that judgment could not have anyefficacy at all. But as long as the said judgment is not appealed against andset aside, its findings and decisions remain binding on both the parties.

Golam Morshedvs Mrs Farhad Jahan 42 DLR 223.

Servicematters—Contention of the petitioner regarding his unblemished career in theTCB and counter—contention of the employer TCB with regard to the petitioner'svarious involvements in departmental proceedings and criminal cases—It is notfor the Court sitting in this jurisdiction (Writ jurisdiction) to decidewhether the petitioner's ACR was without any blemish to TCB's contention withregard to the service career of the petitioner is the correct version.

Mirza MdAbdullah—Al—Rabbani vs TCB, Bangladesh 42 DLR258.

Analogoushearing—

Appeal—Whentwo suits were being heard analogously and an order was passed in respect ofdocuments relating to both, one appeal against such order was in accordancewith law.

CaptainShamsul Alam Chowdhury vs Shirin Alam Chowdhury 43 DLR 297.

Court'sobservation—

Whether itcan be made in aid of saving limitation to prefer appeal before theAdministrative Appellate Tribunal—It will be for the Administrative AppellateTribunal to take a decision with regard to limitation—It will be absolutelyinappropriate to pre—empt the Tribunal's decision in this regard in any manner.

Abdul Latifvs Bangladesh 43 DLR 446.

Defect ofparty—For defect of party the Appellate Court should not ordinarily dismiss asuit, rather should give an opportunity to the plaintiff to make his suitwithin the form.

Feroj aKhatoon vs Brajalal Nath 43 DLR 160.

Discretion—Evenif the discretion exercised by the Court is not in strict conformance with Jawand rules, the discretion would not be interfered with if it did not occasionfailure of justice.

Moynul Hasanvs Nazmul Haq 43 DLR 82.

Duty ofCourt—When an injury is caused to a party due to any mistake or defaultcommitted by a court or its officers, it is not only the right but also theduty or the court to correct its own mistake.

Keramat AliBhuiyan vs Ramizuddin Ahmed Bhuiyan 43 DLR (AD) 58.

Error ofProcedure—A judgment of reversal which does not discuss or allude to thesalient and unavoidable grounds on the basis of which the trial Court comes toa contrary conclusion must be deemed to be vitiated by an error of procedure.

Safia Khatunvs Amena Khatun 43 DLR (AD) 206.

Evidentiaryvalue of document—Neither the alleged transferee of the share—scripts nor thealleged witness of the instrument of transfer has been examined to prove theinstrument of transfer Ext. 4. It has not therefore been proved in accordancewith Jaw and cannot be taken as evidence.

Ismail (Md)Siddique vs Crescent Apparels (Pvt) Ltd 43 DLR 99.

In a drasticaction by the Court, the question of invoking jurisdiction for the action byimplication cannot arise.

Yusuf vsMoftal Ahmed Sowdagar 45 DLR (AD) l78.

Issue—Decisionon merit necessary— Since an issue was framed by the Court and judgmentdeclared, the court ought to have decided the issue on merit and not dismissedit for non—prosecution. The court could either frame the issue and decide it onmerit or dismiss the application for nonprosecution without deciding theissue.

Abdur Roufvs Bangladesh 46 DLR 118.

Point forleave to appeal—A Counsel is free to give up any point wbic:b may have beenraised at the time of granting leave and in that case the court may not alsodecide a point even though of law on which leave was granted.

Sonali Bankvs United Commercial Bank Ltd 44 DLR (AD) 316.

Reagitatinga point—When leave was granted with the tacit admission that the notice undersection 106 of the TP Act was defective the Court cannot in fairness embarkupon a fresh inquiry into the validity of such notice. The landlord—appellantshaving abandoned that point, they cannot be allowed to reagitate the same inthe absence of the respondent.

ZahuraKhatun vs Rokeya Khatun 43 DLR (AD) 98.

Rectificationof judgment—If litigants feel aggrieved by incorrect statements in a judgmentthe convenient course is to apply to the judge for rectification.

Sofia Khatunvs Amena Khatun 43 DLR (AD) 206.

Servicematter—Charges against the petitioner lacked any particulars as to when, whereand to whom the defamatory statement as alleged was made. No reasonable personcan reply to or show cause against vage allegations. The entire proceedings onthe basis of vague charges was illegal and violative of the principles ofnatural justice.

AKMHedayetul Islam vs Executive Vice Chairman BARC 43 DLR 44.

Submissionon facts—

AppellateDivision is not inclined to consider submission based on facts which was notmade at any time previously.

Bangladeshvs KM Shafi Ltd 43 DLR (AD) 217.

Suit basedon Bainapatra—

Weight oftechnicalities of admission or denial—The District Judge disbelieved thecontents of the Bainapatra on the ground that in their evidence the plaintiffsdid not specifically deny the averments made in the written statement. TheDistrict Judge placed thereby undue weight on mere technicalities of admissionor denial by the parties in their pleading and committed error of law byreversing the decision of the trial Court.

KaziBashirul Islam vs Naresh Chandra Das 44 DLR98.

Use of landin urban area—

In thesedays of scarcity of the accommodation in urban areas a co—sharer should not bedeprived ofusing the land in his possession, which is a subject matter in thissuit for partition, by making constructions at his own risk and peril. If anyportion of the constructed area falls in the Saham of another co-sharer, thepossession thereof shall be given to the allottee by demolishing theconstructions.

Fahim AlHaque vs Mohammad Abdul Aziz 43 DLR 226.

Winding upof a private limited company principle to apply—there is absolutely a deadlockin the Company due to fraudulent transfer of shares and, as such, the principleof dissolution of partnership will apply for winding up of the company. Therewas total mismanagement in the matter of profit and loss account, dividend,preparation of balance sheet; holding of annual general meeting and Board'smeeting of the Company. For the ends of justice the respondent private limitedcompany having the character of partnership deserves liquidation on just andequitable grounds.

Md IsmailSiddique vs Mis. Crescent Apparels (Private) Ltd. 43 DLR 99.

True,appellate Court not having the benefit of examining the witnesses or seeingthem should be extremely cautious to reverse the decision on a question of factbut being the final court of fact it has the jurisdiction to see that theevidence was properly appreciated and assessed.

Abdul Kaderand another vs Abdul Aziz and others 47 DLR 67.

A personother than the writ petitioner himself can swear the affidavit in support ofthe writ petition on behalf of the petitioner only with the leave of the Courtby producing either a letter of authority or a power of attorney supporting hisauthority to swear the affidavit.

HabiburRahman (Md) vs Government of Bangladesh and ors 51 DLR (AD)39.

On the faceof two conflicting decisions on the issue this court exercising co—ordinatejurisdiction can decide the issue without referring the matter to a largerBench or leaving the point to be decided by the Appellate Division.

ShaheraKhatun & ors vs State and another 53 DLR 19.

Even adecision of a Division Bench is not always binding on another Division Benchwhich is free to take a contrary view with regard to a principle of law laiddown by the other Bench.

Arif Rahmanvs Commissioner of Customs and others 53DLR 76:

The assesseemay raise a point of law before the Tribunal for the first time provided nofresh evidence is required to decide the issue.

EasternHardware Store vs Commissioner of Taxes 54 DLR 125

Pre-Shipment Inspection Order, 1999

Pre-ShipmentInspection Order, 1999

Para 5(1)—

IntertekTesting Services International Limited and others vs National Board of Revenueand others 55 DLR 691.

Premises Rent Control Act, 1991

PremisesRent Control Act [III of 1991]

Section 18(5)—

Thecontention that once the defendant was inducted in the disputed land withpermission to raise construction, he is no ·more liable to be evicted therefrom,is totally an unacceptable proposition.

Azim vs NaimAra Begum 56 DLR l 58.

Sections 18(5) & 19(1)—

Non—receiptof rent within the agreed date or the date fixed by law gives an opportunity tothe tenant to have recourse to section 19(1) in order to save his eviction buthe is not authorised to accumulate rent or transmit any rent by money order tothe landlord in advance in defiance of the agreement or of law as the case maybe.

Santi BhusanDeb vs Principal Officer, Samabaya Bank Ltd 54DLR 224.

Premises Rent Control Ordinance, 1963 [Section 18(1)e - 27]

PremisesRent Control Ordinance [XX of 1963]

Section 18(1)(e)—

AppellateCourt did not consider the plaintiff's case of bonafide requirement—Findingcannot be termed concurrent.

ChannelCinema Ltd vs Chowdhury Golam Malek 42 DLR (AD) 119.

Section 18(1)(e)—

Prayer forremand to the appellate Court for re-consideration of evidence of theparties—Prayer rejected—Court held that the cause of justice will be hamperedinstead of its being furthered if such prayer allowed.

ChannelCinema Ltd vs Chowdhury GolamMalek 42 DLR (AD) 119.

Section 18(1)(e)—

Independentwitness—Plaintiff's failure to examine such witness—Trial Court's wrongshifting of the onus on the defendant when case's onus probandi was notdischarged by the plaintiff himself.

ChannelCinema Ltd vs Chowdhury GolamMalek 42 DLR (AD) 119.

Section 18(1)(e)—

What causeor causes under section 18(l)(c) of the Ordinance will satisfy the Court as tothe landlord's bonafide requirement of the premises for allowing a prayer foreviction will depend upon the facts and circumstances —of each particular case.

ChannelCinema Ltd vs Chowdhury Golam Malek 42 DLR (AD) 119.

Section 18(1)( e )—

The expiryof the period of lease or the fact that the interest of landlord has beentransferred shall not by itself be a satisfactory ground to evict a tenant.

If theperiod of lease expires with efflux of time or if the interest of the lessor istransferred, that will be a good ground for eviction of a tenant under theTransfer of Property Act, but "shall not of itself be deemed tobesatisfactory cause within the meaning of clause (c) of sub-section (1) ofsection 18 of the Ordinance. A protection from eviction will be available tothe tenant if he is ready and willing to pay rent to the full extent allowableby the Ordinance, notwithstanding the expiry of the term of lease andnotwithstanding the transfer of interest of the lessor.

Abdul Azizvs Abdul Majid 46 DLR (AD) 121.

Section 18(1)(e)—

Bonafiderequirement, ambit of—The plaintiff while residing at Comilla stated that heneeded, the suit house at Dhaka for his own accommodation as and when he wouldcome to Dhaka for treatment of serious ailments. It was not necessary for himto show that he was planning to shift· to Dhaka. It was enough if he needed thehouse for his own accommodation for occasional treatment of his seriousailments. As for the requirement of his family members besides the plaintiffhimself, his son stated that he was doing business at Dhaka staying at thehouse of his sister and they had no other house except the suit house at Dhaka.This is a clear enough expression of a compelling necessity.

Chand (Md)Miah Sawdagar vs SMA Rahman 43 DLR (AD) 225.

Section 18(2)—

Provisionsof law leave no room for doubt that such payment of tax is adjustable andauthorised by law.

Esarunessa Bibivs Amir Hossain 38 DLR (AD) 1.

Section 18(3)—

Meaning ofthe word "transfer" occurring in section 18(3) of theOrdinance—Significance of the prepositions "from" and "to"in the meaning of "Transfer" which shows complete cessation of theinterest of the transferor.

Begum MotiaAkhtar Khanam vs Shawkat Ara and others 42 DLR (AD) 26.

Section 18(3)—

Whethersection 18(3) is applicable against the defendants is in question. It can comeinto operation only ifthe tenants have sublet or transferred their undertakingtogether with the premises to the third person. No case has been made out thatdefendant Nos. 1 & 2 have transferred their interest to defendant No. 3.The former have not gone away from the premises leaving it to the latter and inthis view of the matter, the High Court Division has taken a wrong view of thelaw.

Begum MotiaAkhtar Khanam vs Shawkat Ara 42 DLR (AD) 26.

Section 18(5)—

Deposit ofrent in the office of the House Rent Controller is not an institution of a casewithin the meaning of Article 2 of PO No. 12of1972 as the House Rent Controllerdoes not decide the dispute between landlord and tenant. The Controller is amere conduit pipe.

Deposit ofrent in the office of the Controller is not a suit, a prosecution, an appeal, arevision and a review, the question is: is it a 'case' within the meaning ofsection 2 of the Order? The Rent Controller receives rent like any othercounter and he does not determine whether the allegations made in theapplication for deposit are true or false. The object in accepting such rent isto furnish evidence of tender as kept by the office of the Controller in orderto decide the question of default in a properly constituted suit. In this viewof the matter, the deposit of rent in the office of the Controller is not aninstitution of a 'case' as the Controller upon such deposit does not decide thedispute between the tenant and the landlord. In such a situation the Controlleris a mere 'conduit pipe.'

Md Osman vsFatema Khatoon 41 DLR 270.

Section 18(5)—

Refusal oflandlord to receive rent from tenant— Tenant's duties set out in section 18(5)of the Ordinance to get protection from ejectment.

In the caseof Ramjan Ali Mistry vs Md Hadayetullah, reported in 31 DLR (AD) 183 theirLordships of the Appellate Division of the Supreme Court of Bangladesh hadfinally spelt out the interpretation of the expression defaulter as in thesection 18(5) of the Premises Rent Control Ordinance, 1963, both in the case ofpayment ofrent to the landlord and deposit of rent before the House RentController. It has been observed therein that the tenant must pay rent in termsof the contract and if the landlord refuses to accept rent the tenant remitsthe rent within the aforesaid 15 days of the following month by money order. Ifthe money order is refused he would deposit the rent with the House RentController within a fortnight from the date of receipt of the undelivered rent,sent through the postal authority, and when these conditions are fulfilled bythe tenant he gets the protection otherwise he becomes a defaulter and theprotection from ejectment, granted by the Ordinance is clearly taken away bythe expressed language of sub-section 5 of section 18 of the Premises RentControl Ordinance.

President,National Tuberculosis Relief and Rehabilitation Society vs M Chowdhury 41 DLR103.

Section 18(5)—

Whether thetime limit for payment of rents as fixed in the statute itself can be variedexcept in accordance with a written contract—Whether such variation can be madeby oral contract and secondly whether there can be existence of an oralcontract that can be proved by subsequent conduct of the landlord and thetenant—Interpretation of sub-section (5) of section 18 of the Ordinance and theconduct of the plaintiff—respondent in granting month—wise rent receipts showthat the landlord truly understood the express language and provisions ofsub-section (5) in the right manner. No implied contract either can be said tohave been created· simply by the fact of payment and acceptance of rents forseveral months at a time—Such irregular payment did not also constitute anywaiver of the right to receive rents as laid down in the aforesaid sub-section.Appellants having defaulted in paying rents within 15 days of the month nextfollowing that for which the rent is payable in accordance with the provisionsof sub-section (5) of section 18 of the Ordinance cannot escape eviction.

A Haque vsZakir Hossain 40 DLR (AD) 109.

Section 18(5)—

Rent to bepaid by the 5th of each current month according to the agreement. Whether theappellant can claim the benefit of section 18(5).

Maria KeshiD' Rozario vs Hasan Movies Ltd 41 DLR (AD) 135.

Section 18(5)—

Onus tobring a case within the ambit of section 19 as to deposit lies on the tenantand conditions for remittance by MO and deposit with the Rent Controller are tobe fulfilled before deposit is made—All these conditions having been fulfilledby the tenant, deposit made on 14-3-1984 is a valid one in this case.

Maria KeshiD' Rozario vs Hasan Movies Ltd 41 DLR (AD) 135.

Section 18(5)—

The tenanthaving continued in possession of the premises after expiry of lease agreement,he is bound to pay rent in terms thereof and not those under section 18(5) ofthe Ordinance.

ParimalRanjan Das vs Nasima Khatun 49 DLR 286.

Section 18(5)—

Landlordshad in their hands unadjusted amount of money paid by the defendant tenantwhich could be easily adjusted towards payment of rent, the latter would not beheld a defaulter and evicted as a tenant.

MonoranjanBarua vs Mirza Masud Hossain and others 48 DLR (AD) 130.

Section 18(5)—

There beingprovisions of section 18(5) in Ordinance as to consequence of being adefaulter, a special law having overriding effect mere insertion of a negativeclause in the agreement cannot bar a citizen to seek reliefs in a Court of law.

Bashir Ahmedand others vs Ayub Ali Mollah 52 DLR 55.

Sections 18(5) and 19—

When rentwas deposited with the House Rent Controller within the statutory period of 15days after the return of the First Money Order dated 8-2-1984 undelivered 'asrefused' on 29-2-1984, the second Money Order dated 15-3-1984 was not necessary—Depositof rent was made on 14-3- 1984 under section 19 of the Ordinance within 15 daysfrom the return of the Money Order on 29-2- 1984.

Maria KeshiD' Rozario vs Hasan Movies Ltd. 41 DLR (AD) 135.

Sections 18(5) and 19—

If timelimit given in the Ordinance is to be varied by landlord and tenant, then itimplies something in writing.

Abdul GhaniKhan vs Abdul Rashid Khan & others 42 DLR 147.

Sections 18(5) & 19(1)—

If thelandlord fails to notify the tenant in writing that he is willing to accept therent for the period subsequent to receipt of undelivered rent sent through thepostal authority, clause (b) of sub-section 19 enables the tenant to makedeposit of rent with the Rent Controller within 15 days from the stipulateddate if there is stipulation in the contract or in the absence of stipulationwithin 15 days from the 15th day of the month next following that for which therent is payable.

Atiqullah vsMosammat Rahela Bibi 46 DLR 494.

Sections 18(5) & 19(1)—

Payment ofrent by postal money order—Whether a prior personal tender is necessary—Atenant is entitled to deposit his rent with the Rent Controller when thelandlord has refused to accept the same after it was remitted to him within thespecified period by postal money order. There is nothing in the"explanation" to justify the view that there should be a priorpersonal tender of the rent to the landlord.

M/s. GoldenBiscuit Co. vs Alhaj Rafique Mia 45 DLR 181.

Sections 18(5) & 19(1)(a)—

Depositingrent in Court—Question of tenant's entitlement to make deposit—There is noevidence that the tenant ever offered any rent or sent the same by money order.The only witness for the tenant-defendant, he himself, said nothing aboutremitting rent to the plaintiffs before making deposits in their names. Thedeposit thus made does not qualify to be a valid tender of rent andconsequently cannot save the tenant from being a defaulter and the liabilityfor eviction.

AKMShamsuddin and others vs Aftabuddin Ahmed 43 DLR (AD) 230.

Section 18(6)—

Charges andrates which a tenant is usually liable to pay for the utilities such aselectricity, water, gas etc, are not part of the rent of the premises. Thesepayments are generally made to the authorities who provide for the saidutilities. A landlord is not entitled to the said charges or rates for thesimple reason that he does not supply the same to the tenant.

ContinentalCorporation (Pvt) Ltd vs Al-Haj Md Ismail 48 DLR (AD) 90.

Section 19—

There was nooral or written contract whatsoever between the parties that the defendant isentitled to pay arrears rents in lump as and when it suits him. In the absenceof such contract he has to pay rent for the previous month by the 15th of thefollowing month. As the defendant has not done so he is a defaulter in thepayment of rent on a number of occasions.

MM Zaman vsMrs Sakina Ahmed 38 DLR 313.

Section 19—

The HouseRent Controller is not required to decide anything with regard to default inpayment of rent. The question whether the petitioner is a defaulter is to bedecided in the suit for ejectment. The finding of the Rent Controller on thepoint of default will have no binding effect on the sec Judge while decidingthe suits on merit.

Sheikh MohdSalimullah vs Shafiqul Alam 43 DLR 113.

Section 19—

There is nostatutory provision which requires that rent is to be paid or tenderedpersonally by the tenant to the landlord.

Al-HajjMirjahan vs Golden Biscuit Company 45 DLR (AD) 166.

Section 19(2)—

Transfer ofland—Payment of rent—although a definite case was made out in the plaint itselfthat the suit land has been gifted in favour of plaintiff Nos. 2 and 3 but noattempt has been made either to investigate about such transfer or makingpayment of the rent in favour of plaintiff Nos. 2 and 3 and therefore paymentof rent even if in the name of plaintiff No. 1 will be no ground to save thedefendant from being defaulter in view of the decision as referred to above bythe learned Advocate for the respondents reported in 36 DLR (AD) 191.

Loretto vsNasreen Sobhan and another 55 DLR 581.

Section 21—

Noapplication under section 21(1) and 21(3) of the Premises Rent ControlOrdinance is maintainable when the tenant seeking permission is out ofpossession and when the question of reconstruction is involved.

Abdul KaderKhan vs Rajshahi Co-operative Town Society Ltd 54 DLR 633.

Section 27—

Non-disposalof the application under section 27 of the Ordinance before the disposal of thepresent case would render the suit for eviction infructuous.

NarayanPrasad Bhowmic vs SS Juktaswar Radha Madhab 40 DLR 449.

Premises Rent Control Ordinance, 1963 [Section 2 - 18(1)(5)]

PremisesRent Control Ordinance [XX of 1963]

Sections 2 & 18—

Terminationof tenancy—Position of legal representative of a deceased tenant—A tenant underthe Ordinance is same as a lessee under the TP Act and the monthly tenancy isalso a lease under section 105 TP Act, Tenancy has not been defined in theOrdinance, but it clearly falls within "lease'' as defined in section 105."Tenancy" relates to "premises" which has been defined inthe Ordinance. Lease covers all immovable property including a premises.

Lease istransfer of a right to enjoy an immovable property. Legal representative of adeceased tenant will be brought to the scene only to pay rent and not toinherit the deceased tenant's right to hold the tenancy for the purpose ofoccupying the premises as expressed in paragraph 8 of the decision reported in32 DLR (AD) 171 are not correct as the definition of tenant also includes aperson continuing in possession after the termination of the tenancy.

Pradhip Dasalias Shambhu & others vs Kazal Das Sarma & others 44 DLR (AD) 1.

Section 2 (Uma)—

A personcontinuing in possession after termination. of a tenancy in his favour is alsoa tenant.

Abdul Azizvs Abdul Majid 46 DLR (AD) 121.

Section 2(8)—

Definitionof tenant occurring in section 2(8}—lt is the respondent who by his letterdated 7—12—83 informed the appellant that he was not ready to allow her to,continue as a tenant on the existing rent but demanded higher rent of Taka 4000as against Tk.750 under the agreement, due to expire by 31—12—83.

Maria KeshiD'Rozario vs Hasan Movies Ltd. 41 DLR (AD) 135.

Section 2(9)—

Definitionof tenant—Whether the tenant includes the heirs as legal representativeswithin the meaning of section 2(11) of the Code of Civil Procedure.

Kazal DasSurma vs Pradip Das 40 DLR 541.

Section 2(9)—

The viewexpressed in CR No. 756 of 1981 that a fresh suit against the heirs of thedeceased tenant for eviction did not receive any consideration of section 2(11)& section 50 of the Code of Civil Procedure & section 2(9) of PRCOrdinance (XX of 1963).

Kazal DasSurma vs Pradip Das 40 DLR 541.

Section 9—

Municipaltax or rate may, by arrangement, be paid either by the landlord or the tenant.

MaherunnessaKhatun vs Abdul Latif 38 DLR (AD) 196.

Sections 9 & 10—

Section IOmerely prohibits the premium, salami, etc. and acceptance of rent exceeding onemonth's rent in advance without written consent of the Controller.

MaherunnessaKhatun vs Abdul Latif38 DLR (AD) 196.

Sections 9 & 10—

What hasbeen held in 38 DLR (AD) I explained—Tenant in occupation was compelled to payarrears municipal tax which must be deducted from payment of rent due.

MaherunnessaKhatun vs Abdul Latif 38 ·DLR (AD) 196.

Sections 10 and 16—

If anylltlvance beyond one month's rent is received by the landlord, the tenant isentitled under section 16 of the Act to make an application within 6 months tothe Rent Controller and in that case the Rent Controller may order refund ofthe advance rent or adjust any sum so paid or deposited in any other manner.

MymensinghArya Dharma Gnan Prodaini Sava vs Rabindra Narayan Paul 56 DLR 47.

Section 13—

Section 13makes it obligatory for the landlord to give a written receipt of payment ofrent. Rule 6 of the Premises Rent Control Rules 1964 prescribed the form.

MaherunnessaKhatun vs Abdul Latif 38 DLR (AD) 196.

Section 14(b)—

Provisionsof law leave no room for doubt . that such payment of tax is adjustable andauthorised by law.

EsarunnessaBibi vs Amir Hossain 38 DLR (AD) 1.

Section 18—

Requirementof the demised premises for an adult son and a widowed daughter cannot be saidto be a requirement of anyone else other than the plaintiffs because they arevery much within his family.

Nur Begum vsDr Yusuf Ahmed & another 50 DLR (AD) 210.

Section 18—

Default madeby a tenant in payment of rent within time specified in section 18 cannot beovercome by subsequent payment of rent to avoid eviction. Subsequent acceptanceof rent by the landlord paid beyond the due date will amount to waiver. Theplea of waiver must be. taken at the earliest opportunity.

MessrsBinning & Co. (Bangladesh) Ltd vs Nasirabad Properties 40 DLR (AD) 89.

Section 18—

The·statutory restrictions relating to payment of monthly· rent within 15th day ofthe next month, if discharged by the tenant will disentitle him to theprotection against eviction for default in payment of rent Mere acceptance ofrent by the landlord without objection or protest is not sufficient toconstitute waiver.

MessrsBinning & Co. (Bangladesh) Ltd vs Messrs Nasirabad Properties 40 DLR (AD)89.

Section 18—

The plea ofwaiver must be taken in his pleading by the tenant and at the trial where itshould be raised as an issue.

Binning& Co. (Bangladesh) Ltd vs Nasirabad Properties 40 DLR (AD) 89.

Section 18—

Leave wasgranted to consider the question whether the defendant—appellant was entitledto protection against eviction under section 18 of the Premises Rent ControlOrdinance.

Appellant'scase was that he took the plea of waiver, acquiescence and estoppel in hispleadings. Ext. A(45) shows the realisation of 18 months' rent in lump throughKarmachari. Acceptance of rent by issuing monthwise rent receipts did notconstitute waiver, it was contended.

Theconclusion, even on the ratio of the case of MA Haque and the majority viewofBinning & Co. Ltd. emerges from the evidence that the defendant made outa case of waiver and acquiescence. The present case is an example of waiver andacquiescence established on evidence.

GolamHossain vs Asia Khatun Chowdhury 40 DLR (AD) 1.

Section 18—

Defaulter—Waiver—Atenant who has failed to pay rent within the date stipulated in the agreement,or in the absence of agreement, according to the provision of the Ordinancewill be a defaulter and not entitled to protection. It is, however, open to himto plead that the landlord waived his right to receive rent in terms of theagreement or the law.

ParimalRanjan Das vs Nasima Khatun 49 DLR (AD) 144.

Section 18—

Under thetenancy agreement rent of the previous month was to be paid by the 1st week ofthe next month. Admittedly the defendant on 3—5—86 sent by money order the rentfor the months of March and April 1986 together to the plaintiff and as suchthe defendant clearly defaulted to pay rent at least for the month of March,1986.

Nurul Islam(Md) vs Md Ali Hossain Miah being dead his heirs Amir Hossain and ors 50 DLR(AD) 114.

Section 18—

Mereacceptance of arrear rent is not sufficient to save the tenant from being adefaulter.

A tenant isunder an obligation to pay rent to the landlord after the same has become dueand the landlord was not required to approach the tenant for payment. Thenon—payment of rent within the 15th of the next month disentitled the oppositeparty to the protection against eviction for default of payment ofrent. Theonly exception that can take the tenant out of the mischief of the default iswaiver. Mere acceptance of arrear rent is not however sufficient to constitutewaiver. Whether there has been waiver by the landlord must be gathered from thefacts of each case and no standard formula can be laid down.

Md Sonwar vsKamal Kha 46 DLR 346.

Sections 18 & 19—

Remittanceof rent after becoming defaulter and deposit of rent beyond the prescribedperiod are not in compliance of sections 18 & 19 and come within the ruleof default.

WahidaRashid vs Miron Muhammad Zahidul Hoque 43 DLR 115.

Sections 18 & 19—

A tenant isunder a legal obligation to pay rent regularly to the landlord. A tenant has noright to claim adjustment of any advance against monthly rent. Any agreementfor advance or premium is void and not enforceable. The remedy for the tenantin case of advance is to move the Rent Controller within six months of creationof the tenancy for getting .an order of refund.

MymensinghArya Dharma Gnan Prodaini Sava vs Rabindra Narayan Paul 56 DLR 47.

Section 18—

Noprotection can be given to a tenant under law once he is found to be adefaulter and payment of rents in lump for several months cannot save thetenant from the mischief of his eviction.

MG Jilani vsMd Wahed Uddin Sardar 44 DLR 348.

Section 18—

Bonafiderequirement—It is not a mere wish, whim or fancy of the landlord. It means hisactual necessity. There should be sufficient materials on record on which courtcan rely for the proof of the plea of bonafide requirement.

Kanak Malavs Md Safiuddin 43 DLR38.

Sections 18 A 19(1)(Ka)—

Undersection 19(Ka) of the Ordinance the Court is not to see whether the tenant baspaid rent within time under section 18 of the Ordinance but whether the tenantis depositing the rent within 15 days of refusal of the rent by the landlord.

RabeyaKhatun vs Md Saidur Rahman 56 DLR (AD) 19.

Section 18(1)—

The landlordis under legal obligation to prove that he needs the premises for bonafiderequirement. Expansion of existing business run in a shop room adjacent to theroom let out constitutes bona fide requirement.

Zaher Ahmedvs Manik Sardar 53 DLR (AD) 63

Section 18(1), proviso—

Plaintiff'sbonafide requirement of his tenanted house for use and occupation of himselfand his sons—Evidence led by· the plaintiff's sons does not ·show that theyrequire the suit house for residence—In bonafide requirement there is not onlyan element of "must have" in the 'requirement' or 'need' but thatneed of the house must also be honestly felt.

Md Chand MiaSawdagar vs SMA Rahman 37 DLR 266.

Section 18(1(5)—

Payment ofrent in lump does not save a tenant from the mischief of the Ordinance makinghim a defaulter.

MessrsBinning & Co. (Bangladesh) Ltd vs Messrs Nasirabad Properties Ltd 40 DLR(AD) 89.

Section 18(1)(5)—

Theappellant whose default has been established is not entitled to the statutoryprotection against eviction.

MessrsBinning & Co. (Bangladesh) Ltd vs Messrs Nasirabad Properties Ltd 40 DLR (AD)89.

Section 18(1)(5)—

Once thedefault occurs subsequent acceptance of the rent in lump by the landlord doesnot amount to waiver in the absence of any positive proof of his intention towaive such default.

MessrsBinning & Co (Bangladesh) Ltd. vs Mis Nasirabad Properties Ltd 40 DLR 89.

Section 18(1)(5)—

When thetenancy itself was terminated, a sub—lease created by the tenant cannot be saidto have subsisted. It appears that the High Court Division omitted to considerthat when defendant No. I was admittedly a tenant of the appellants predecessorAbdul Aziz Bepari who inducted defendant No. 2 into the suit premises withoutthe consent and knowledge of the latter such transaction was of the nature ofsub—lease, though not binding upon the landlord who was unaware of it.. Noquestion of giving consent to the sub—lease could, therefore, ever arise.Moreover, when the tenancy itself which was created in favour of defendant No.1 by the appellants' predecessor was terminated, a sublease in favour of defendantNo. 2 by the tenant cannot be said to have subsisted. A sub-leasee can be saidto be trespasser in the circumstances of the case. Technicalities of law maysometimes prove to be of great value in winning even a bad case, but thedefendant cannot hope to win on such technicalities alone.

Tajabunnessavs Nazma Begum 40 DLR (AD) 36.

Section 18(1)(5)—

Payment ofrent—Protection against ejectment—The provision contemplates an enquiry as towhether the tenant was entitled to the benefit of the protection from ejectmentdue to non-payment of rent. The enquiry becomes all the more necessary when thetenant comes with a positive case that due to some abnormal situation it wasbeyond his control to pay rent. Conditions like war of liberation should be readin the statutory provision as an exception clause to the sub-section.

Kalu Mandalvs Begum Fazilatun Nessa 46 DLR (AD) 53.

President's Election Act, 1991

President'sElection Act [XXVII of 1991]

Sections 4 & 10—

Abdus SamadAzad vs Bangladesh 44 DLR 354.

Sections 4 & 10—

Freedom ofconscience while voting as a member of the Parliament—Freedom of conscienceguaranteed under the Constitution would relate to private liberty to choosebetween two alternatives as directed by the elector's sense of moral values, inthose areas of life where the result of one's effort affects none else but onlythe individual. It is not to be extended to a voting system where the member ofthe Parliament is choosing a President both as an individual and in hiscapacity as a representative of the people.

Abdus SamadAzad vs Bangladesh 44 DLR 354.

Sections 10-12—

Question ofvoidability of a legislation and stay of election—For the reasons that he whoseeks equity must do equity and must come with clean hands at the earliestopportunity and that the petitioners slept over the matter for a considerableperiod of time and preferred to challenge the Act only after the promulgationof the Ordinance which has since repealed, prayer for ad interim stay isrefused and the matter be placed before the regular Bench on the reopening ofthe Court for hearing of the substantive application.

Abdus SamadAzad MP vs Bangladesh 43 DLR 607.

President's Order

President'sOrder No. 12 of 1972

Article 3—

Restorationof legal proceedings —When restoration can be allowed to defendants that hadsold out their interests in the suit landsIn their application under Article12 defendant Nos. 2 & 3 did not deny the sale of their interests but theyasserted that they had their ancestral homestead in the suit land and they werecosharers of the holding and the suits were compromised in their absence. Theywere not required to disclose what stand they would take in their writtenstatements which could only be filed after the restoration of the suits. Thecase made out by them in their present application that they are co-sharers wasgood enough for restoration of the suits. The law in the case reported in 35DLR 86 has not been correctly decided.

MohammadAshraf Ali vs Rajeswar Ghose 43 DLR (AD) 149.

President'sOrder No. 16 of 1972

Section 2—

Abandonedproperty—Meaning of leaving the house—In the "known circumstances"referred to by the respondent No. 3 it was not unnatural for him to feelinsecure and leave the house for security. Leaving the house in such a mentalstate does not mean that he gave up his right to the property and therefore, itcannot be said that he ceased to occupy the house.

Abdul Quddusvs Bangladesh 44 DLR 484.

Article 2—

At the timeof taking over the company as abandoned the formation of the opinion of theGovernment as to its abandoned character was necesary.

Arif AShekha and others vs Bangladesh 47 DLR 289.

Article 2—

As thecompany and its shares have been vested under President's Order No. 27 of 1972on the ground that it was vested in the Government as abandoned property, underPresident's Order No.16 of 1972 if it is found that the company and sharesthereof does not carry abandoned character then the shares of the petitionerswho were found to have been away from the country and have been residing as itsnationals in any country which was 'not at war with Bangladesh could not betreated as abandoned shares.

Arif A Shekhaand others vs Bangladesh 47 DLR 289.

Article 2—

The HighCourt Division was not a Court of appeal required to make determination offacts on its own. It could interfere with the findings of a tribunal of factunder Article 102 only if it could be shown that the tribunal had acted withoutjurisdiction or made any finding upon no evidence or without considering anymaterial evidencelfacts causing prejudice to the complaining party or that ithad acted mala fide or in violation of any principle of natural justice.

Governmentof Bangladesh, represented by the Secretary, Ministry of Works vs Md Jalil& others 49 DLR (AD) 26.

Articles 4 & 5—

A statutoryvesting cannot go beyond the terms of the statute itself. The Government actingin the Ministry of Industries under President Order No. 16 of 1972 could nothave assumed either the paramount ownership of or the lessor's interest in thedisputed land.

NationalEngineers Ltd vs Ministry of Defence 44 DLR (AD) 179.

Article 102—

The HighCourt Division could interfere with the findings of a tribunal only if thetribunal had acted without jurisdiction or made any finding upon no evidence orwithout considering any material evidence causing prejudice to the complainingparty or acted malafide or in violation of the principle of natural justice.

HamayetUddin Ahmed vs 1st Court of Settlement, Bangladesh Abandoned Building & ors53 DLR 426.

President'sOrder No. 26 of 1972

Articles 3 & 31—

Terminationof bank employee—Civil court jurisdiction—There is no specific provision eitherin the President's Order in the Bank (Employees) Service Regulation againsttermination or employment or imposition of penalty before any court. There istherefore no question of inconsistency of any provision of the Regulation withsection 25 of the Standing Orders Act as to forum for judicial redress. Thissection must be read to have been made applicable in respect of any liabilitycreated under the service regulations. The Courts below therefore fell into anerror of law in not holding that the suits were impliedly barred and the civilCourt had no jurisdiction to entertain the same.

Pubali BankLimited vs Mansur Ali Akanda 44 DLR 589.

President'sOrder No. 27 of 1912

Article 4—

Since thecompany is directed to be wound up with effect from 5-2-1982, the Governmentcannot now exercise its powers under Article 8 of the Order.

RaziaSultana vs Government of Bangladesh and others 56 DLR 366.

Articles 4 & 10—

As thecompany and its shares have been vested under President's Order No.27 of 1972on the ground that it was vested in the Government as abandoned property, underPresident's Order No.16 of 1972 if it is found that the company and sharesthereof does not carry abandoned character then the shares of the petitionerswho were found to have been away from the country and have been residing as itsnationals in any country which was not at war with Bangladesh could not betreated as abandoned shares.

Arif AShekha and others vs Bangladesh 47 DLR 289.

Articles 10 & 17—

The presentdefinition of the local authority as contained in section 3(28) of the GeneralClauses Act included a corporation like Bangladesh Chemical IndustriesCorporation or Bangladesh Food and Sugar Industries Corporation which arebrought into existence under the provisions of President's Order No. 27 of1972.

Commissionerof Taxes vs Bangladesh Chemical Industries Corporation 53 DLR 509.

President'sOrder No. 69 of 1972

Article 4(1)—

TheGovernment of Bangladesh is not a successor of the defendant, Province of EastPakistan. It substituted itself as a party by a legal fiction under Article4(1) of PO No. 69 of 1972 and acquired a right to have heard the suit de nova,irrespective of whatever hearing took place before liberation of Bangladesh.

ChowdhuryTanvir Ahmed Siddiky vs Bangladesh 40 DLR 331.

President'sOrder No. 88 of 1972

President'sOrder No. 88 of 1972 created special forum for restoration of mortgagedproperty. But it did not take away right of redemption available to a mortgagorby filing a mortgage suit.

Asmat Ali vsAbdur Rafique Mridha and others 52 DLR (AD) 132.

President'sOrder No. 90 of 1972

Article 2—

The processof acquisition becomes final only after publication of the notification in theofficial Gazette declaring that the compensation assessment roll has beenfinally published. The property vests in the government only after suchnotification is published. The present case does not come within the mischiefof President Order 90l72 since the plaintiff seems to be in possession of theproperty and there is absence of the required notification.

KhorshedAhmed Chowdhury vs Bangladesh 43 DLR 264.

President'sOrder No. 135 of 1972

Seconddiluvion of the suit land took place in 1362—63 BS and re—appeared in 1374BS—clauses (2) and (3) attracted because diluvion .took place before thecommencement of PO No. 135 of 1972—Plaintiffs right was never recognised underclause (3) of section 86—The view taken by the lower court and upheld by HighCourt Division is correct.

SyedNizamuddin Mohasin vs People's Republic of Bangladesh 41 DLR (AD) 141.

Articles 2 & 3—

In the landswhich were in diluvion prior to 13th July, 1994 the right of the originaltenant or his successors would continue if the lands re—appear in situ within30 years. The Government can only claim such of these lands in diluvion whichhad re—appeared prior to 13th July under the PO No. 135 but cannot claim suchright in respect of lands which in still is diluvion.

KajemuddinMiah (Md) vs Bangladesh and others (Spl Original) 52 DLR 240.

President'sOrder No. 136 of 1972

President'sOrder No. 88 of 1972 created special forum for restoration of mortgagedproperty. But it did not take away right of redemption available to a mortgagorby filing a mortgage suit.

Asmat Ali vsAbdur Rafique Mridha and others 52 DLR (AD) 132.

President'sOrder No.147 of 1972

Article 28—

LocalAuthority—As the expression "any authority" falls in the incusivedefinition of the local authority it cannot be said that "anyauthority" does not include the school in question, specially in absenceof any explicit language in the Ordinance by which the expression"school" is excluded from the definition of "anyauthority".

Abdul Mazidvs Abu Zaffor Mohammad Khalil and others 47 DLR 242.

President'sOrder No. 149 of 1972

Article 2(ii)—

Right ofcitizenship- Domicile certificate issued by the then Government of EastPakistan in favour of the 'petitioner would go to show that he was recognisedas a national of Bangladesh and was permitted to livein Bangladesh permanently.The petitioner's living in Bangladesh clearly responds to the requirement ofArticle 2(ii) and he is deemed to be a citizen of Bangladesh. Mere filing of an'application by him for repatriation cannot take away this right ofcitizenship.

AbdulKhaleque vs Court of Settlement 44 DLR 273.

President'sOrder No. 150 of 1972

Article 7(3)—

Right topractice as an Advocate of the Appellate Division—Question of entitlement topractice before the Appellate Division of the Supreme Court of Bangladesh by anAdvocate of the then High Court of Bangladesh without having enrollment underSupreme Court of Bangladesh (Appellate Division) Rules, 1988—The appellant wasentitled to practice before the Appellate Division of the then High Court ofBangladesh under President Order No. 9 I of 1972 and this entitlement continuedtill 16th December, 1972. With effect from that day, which is the day ofcommencement of the Constitution of Bangladesh the provisions of Article 7(3)of President's Order No. 150l72 came into force, and thereunder any referencein any law to an Advocate of the High Court of Bangladesh shall be construed asan Advocate entitled to practice before both the Divisions of the SupremeCourt. Also section 6(c) of the General Clauses Act will apply to theappellant's case so as not to affect his right accrued under the repealed law(President's Order No. 91172).

ShamsuddinAhmed vs Bangladesh 44 DLR (AD) 203.

President'sOrder No. 7 of 1973

Article 27—

The word ????? in thissecond refers to 'suit' and not to all kinds of legal proceedings.

BangladeshHouse Building Finance Corporation vs Jahan Ara Akhter & others 49 DLR (AD)80.

Article 27—

'Suit, is aterm of art and ordinarily means a proceeding instituted in the Civil Court bypresentation of a plaint. The action contemplated under Article 27 is,therefore, outside the concept of ????? which we have found to correspond with 'suit' as provided in themain part of section 5(1) of the Act,

BangladeshHouse Building Finance Corporation vs Jahan Ara Akhter & others 49 DLR (AD)80.

President'sOrder No. 17 of 1973

Article 4(1)—

Election toseats reserved for women—Who are the voters for such electionPersons electedas members to the Parliament from the general seats shall make and subscribeoath as early as possible before the Speaker or the person designated by himwithin a date given by him: The person who administers the oath in respect of amember of the Parliament shall forthwith inform the Election Commission of theadministration of such oath as only those elected members of the Parliament whohave made oath shall be voters for the purpose of election to seats reservedfor women members in Parliament.

Fazle Rabbivs Election Commissioner 44 DLR 14.

President'sOrder No. 19 of 1973

Articles 3-8

Honest userof a trade mark for a long time—Registrar fails to exercise jurisdiction todispose of the petition for registration of the trade mark—Petitioners SattarMatch Works acquired a right to use the trade mark 'Cock' and got summaryregistration for the same by concurrent and honest user for about three decadesalong with Ujala Match Factory. In order to do complete and substantial justicethe Court in exercise of its inherent discretionary jurisdiction givesdirection to the Registrar of Trade Marks to grant summary registration for thetrade mark without prejudice to the Ujala Match Factory for its concurrent useof the same trade mark 'Cock'.

Sattar MatchWorks vs BCIC 43 DLR 532.

President's Order No. 34 of 1973

President'sOrder No. 88 of 1972 created special forum for restoration of mortgagedproperty. But it did not take away right of redemption available to a mortgagorby filing a mortgage suit.

Asmat Ali vsAbdur Rafique Mridha and others 52 DLR (AD) 132.

Press Council Act [XXV of 1974]

PressCouncil Act [XXV of 1974]

Sections 11 & 12—

In view ofthe provision made in the Press Council Act prayer for directions upon thegovernment to frame guidelines as to the petitioner's right to reputation hasno basis.

Aminul HaqueShamim (Md) vs Secretary, Ministry of Information and others 55 DLR 90.

Private University Act, 1992

PrivateUniversity Act [XXXIV of 1992]

Section 6—

Where anapplication filed under sub-section (2) of section 6 of the Private UniversityAct the Minister provisionally accorded permission to start the University andthere being no order under sub-section 4 of the said section rejecting thepetition and the matter is pending for long the notice given by the authorityomitting the name of the petitioner from the category of University obtainingpermission was illegal.

DhakaInternational University vs Secretary, Ministry of Education and others 51 DLR91.

Section 7(d)—

Thesubmission of the learned Counsel that the amended section 7(d) should notreceive a retrospective construction, would have applied if a right had alreadyaccrued in favour of the respondent.

Secretary,Ministry of Education, Government of People's Republic of Bangladesh and othersvs North Point University 55 DLR (AD) 94.

Public Corporations (Management Co—ordination) Ordinance, 1986

PublicCorporations (Management Co—ordination) Ordinance [XLVIII of 1986]

Section 2(e) & 14—

Petitioneris not a worker as per definition provided by Ordinance No. XLVIII of 1986 inclause (e) of section 2 and as such he cannot get the benefit of retirement atthe age of 60 years as has been provided in section l4A of the same Ordinance.

Abdus SalamMolla vs Platinum Jubilee Jute Mills Ltd 52 DLR 500.

Public Demands Recovery Act, 1913

PublicDemands Recovery Act [III of 1913]

Section 4—

Issuance ofcertificate under section 4 of the Act itself on the basis of requisitionsigned by the Bank manager shall be conclusive proof that the amount specifiedtherein is due to the Bank and further determination is excluded.

BangladeshKrishi Bank vs Meghna Enterprises and another 52 DLR (AD) 57.

Section 6—

Non-compliancewith the mandatory provisions of section 6 has rendered the procedure illegal.

Mannaco LabLtd vs General Certificate Officer 42 DLR 159.

Sections 7 and 13—

A sale heldwithout certificate proceeding is not void merely on the ground of non—serviceof notice under section 7 of the PDR Act. It is only voidable. For that thesuit must be brought for setting aside sale within one year from the date ofthe delivery of possession under section 36 of the Act.

MokbulHossain vs Anil Kumar Shaha 37 DLR 131.

Sections 7 and 36, Proviso (a)—

Section 18of Limitation Act is applicable to a suit under the Public Demands RecoveryAct. Section 36, Proviso (a) is no bar to such a suit.

Amina Khatunvs Ansar Ali 40 DLR 389.

Section 8—

In theinstant litigation there is no application of section 8 of the PDR Act becausethe question of payment of any money to the certificate debtors is notinvolved.

Parul Bala@Parul Rani Shah Moniol vs Suruj Miah and others 53 DLR 481.

Sections 10A—

A claim whenadmitted by borrower or fixed and determined in accordance with law becomesdues recoverable under the PDR Act. Recourse could not be had under the Act torecover Bank's claim which has not been determined or admitted. MM EnterpriseLimited vs General Certificate Officer 45 DLR 407.

Sections 10A—

Thelegislature as a policy decision made the changes in the law for quick recoveryof the loan. Thus section 1 OA of the Act which provides for a specialprocedure relating to recovery of dues cannot be said to be arbitrary andillegal.

BangladeshKrishi Bank vs Meghna Enterprise and another 50 DLR (AD) 194.

Sections 10A—

The HighCourt Division wrongly held that section IOA of the Act provides arbitrarypower without a provision for hearing. It is the policy of .the legislature tomake an enactment to that effect. It cannot be said that the law is bad becauseit is not in consonance with the principle of natural justice and it is harshand arbitrary.

BangladeshKrishi Bank vs Meghna Enterprise and another 50 DLR (AD) 194.

Sections 10A, 51, 52 & 54—

On areference to other provisions of the Act, it is found that all the defaultingborrowers of Krishi Bank are entitled to equal protection of law provided bythe Act by way of appeal, review and revision and as such the learned Judgeswrongly held that section 10A offends Articles 27 and 31 of the Constitution.

BangladeshKrishi Bank vs Meghna Enterprise and another 50 DLR (AD) 194

Section 21—

The objectof both the 'sections is to put a stop to benami purchases in auction sale.Both the sections have provided that no suit shall be maintainable against acertified purchaser.

AngadaChandra Roy vs Amarendra Nath Mondal and others 48 DLR 595.

Section 25(1)—

Auction saleof property of a company—The Company is in liquidation long afterwards—Questionof setting aside the sale—Provisions of the Banking Companies Ordinance whenread with those of the Companies Act and the Public Demands Recovery Act, itappears that the provisions of the Banking Companies Act shall be effective inaddition to and not in derogation to the Companies Act or any other law for thetime being in force excepting the provisions which are specifically made in theOrdinance. In view of the fact that the law under which the auction sale tookplace has made provisions for the aggrieved person to seek the relief ofsetting aside the auction and the plaintiff did not avail of the forum forappropriate remedy and the auction is still subsisting in the eye of law, thesame cannot be set aside now in the present proceeding under the Banking CompaniesOrdinance.

OfficialLiquidator vs Jahura Khatun 43 DLR 558.

Section 36—

Theplaintiff—respondents had moved the Circle Officer (Revenue) for setting asidethe auction sale ignoring the provisions of section 36 of PDR Act. Fraud andcollusion in holding auction sale were not proved.

If theauction sale stands, plaintiff respondents can no longer claim any right, titleand interest in the disputed land.

AlauddinSardar vs Surendra Nath Falia 40 DLR (AD) 257.

Section 37—

After havingexhausted all procedures under the Public Demands Recovery Act which is aspecial law the plaintiffs are precluded from coming to the civil Court. Theinstant suits are therefore barred by law on the face of the plaint themselves.

Marida Begumvs Md Hasan 43 DLR 242.

Section 37—

Since fraudhas been alleged by the plaintiffs in auction of their suit land and they werenot made parties in the auction proceedings, the party affected by auction salecan take shelter of the Civil Court.

ParulBala@Parul Rani Shah Mondol vs Suruj Miah and others 53 DLR 481

Section 53—

The powergiven under section 53 of the Public Demands Recovery Act is very wide and isnot restricted to be used only suo motu. Section 53 does not set any time limitand lapse of 20 years does not bar an application if circumstances justify suchdelay or lapse of time.

Sajeda Begumvs Member, Bhumi Appeal Board and others 51 DLR 516.

PublicServants (Dismissal on Conviction) Ordinance, 1985

Section 3(3)—

Since the petitionerwas acquitted of the charge of misappropriation upon an appeal · and thegovernment's appeal against acquittal was dismissed, he is entitled to be reinstatedin his service. The Corporation's memo refusing to re-instate him is illegaland the petitioner is directed to be re-instated in his service at once.

AbdurRazzaque vs Bangladesh Agricultural Development Corporation 45 DLR 613.

Public Servants Retirement Act, 1974

PublicServants Retirement Act [XII of 1974]

Section 2(d)—

Whileinterpreting local authority as mentioned in section 2(d) of Public Servants(Retirement) Act the definition of "local authority" as mentioned insection 2(28) of General Clauses Act will be applicable.

Sayed NurulHossain vs Secretary, Ministry of Industries 51 DLR 226.

Section 5(1)—

The petitioner'scontract service has been terminated in terms of the contract to which he was aparty. Since his appointment has been cancelled in terms of the contract, thewrit jurisdiction is not attracted to his case.

Abdul BariSarker vs Bangladesh 46 DLR (AD) 37.

Section 5(3)—

Since theappointment of the petitioner in the project is in fact re—employment and theapproval of the President having not been obtained before issuing Annexure—A,the appointment of the petitioner as Project Director was illegal.

Sayed NurulHossain vs Secretary, Ministry of Industries 51 DLR 226.

Section 9—

Option toretire—Option for retirement of a public servant is given only to one who hascompleted 25 years of service and to none else. It cannot be read in section 9of the Act that a public servant may exercise his option to retire prior tocompleting 25 years of service. This completion is a condition precedent to optfor retirement.

MofizurRahman vs Bangladesh Parjatan Corporation 44 DLR 436.

Section 9(2)—

If a Governmentservant is retired from service not on consideration of his service record buton consideration of an impartial report submitted by impartial high Governmentofficials after an open enquiry on an incident of an extremely grave nature,then it is for the Government to decide whether to take disciplinaryproceedings against the leading lights of the incident or to retire them in thepublic interest.

Abu Taleb vsGovenment of Bangladesh 47 DLR (AD) 138.

Section 9(2)—

An employeecan be retired from service by the Corporation in exercise of power under Rule5 as well as Regulation 11A(2) and it is not correct to say that Rule 5 doesnot entitle the Corporation to retire its employee from service.

BangladeshBiman Corporation and others vs Md Yousuf Haroon and others 54 DLR (AD) 161.

Section 9(2)—

Retirementwith full pension benefits after completion of 25 years of service is not apunishment nor does it contain any stigma and it is altogether different fromdismissal, removal or compulsory retirement which are different kinds ofpunishment described in Rule 3 of the Government Servants (Discipline andAppeal) Rules.

MA Gafur andanother vs Government of Bangladesh, represented by the Secretary, Ministry ofDefence and another 56 DLR (AD) 205.

Railways Act, 1890

Railways Act[IX of 1890]

Section 6(3)—

Thedefinition of the "Railway Administration" as above was applicablewith reference to that particular Act and there is nothing in the said Act toshow that it is one of the functions of the Railway Administration to make anytransfer of the accquired land. The authority which has been given to theRailway Administration under the said Act can be attributed to the Governmentalso in view of the aforesaid definition and no further.

BangladeshRailway and others vs Pranab Kumar Chakraborty and others 50 DLR (AD) 150.

Sections 72 and 76—

Suit fordamage for loss of goods consigned to the railway administ—ration—Administration must prove that it has taken as much care as a man ofordinary prudence would do in respect of his goods—This when discharged by theAdministration it has no further responsibility to prove how the loss occurred.

BangladeshRailway vs Shambhu Nath Poddar 37 DLR 340.

Regulation 14—

There beingno rule or service condition that the order of dismissal of the teacher couldonly be passed after a prior second show cause notice, the High Court Divisionought to have disapproved the judicial latitudinarianism indulged in by theAppellate Court below.

Post OfficeHigh School vs Asgar Ali 46 DLR (AD) 127.

Sections 72 and 76—

Onsatisfactory discharge of the onus of proof by the Railway Administrationregarding goods consigned to their care onus shifts to the plaintiff to showthat in fact goods were lost due to their misconductThere cannot be anypresumption otherwise.

BangladeshRailway vs Shambhu Nath Poddar 37 DLR 340.

Rajshahi University Act, 1973

RajshahiUniversity Act [XXXVI of 1973]

Sections 9 and 55(3)—

TheAppointing Authority has power under section 16 of the General Clauses Act tosuspend, dismiss and remove the Vice—Chancellor, although there is no specificprovision in the Rajshahi University Act itself for removing theVice—Chancellor of the University. The procedure laid down in section 5(3) ofthe Rajshahi University Act 1973 is not applicable to the Vice—Chancellor forifhe is taken to be an officer of the University then as per section 9 of thesaid Act the Chancellor should also be deemed to be an officer of theUniversity to be dealt with in accordance with the procedure laid down insection 55(3) of the same Act which is nothing but an absurdity.

Professor DrMd Yusuf Ali vs Chancellor of Rajshahi University, Rajshahi & others 50 DLR1.

Recognised Non-Government Secondary Schools

RecognisedNon-Government Secondary School Teachers (Board of Intermediate and SecondaryEducation, Dhaka) Terms and Conditions of Service Regulations, 1979

Regulations 12&13—

Nonexistence of Managing Committee of the school does not vest the DeputyCommissioner (ex—officio chairman of such Committee) with the power to suspenda teacher of the school.

AbdulKhaleque vs DC, Dhaka Collectorate 45 DLR 369.

Regulation 14—

As there isno provision imposing a legal obligation on a member of the enquiry committeeto be present in all its sittings, no legal consequence will follow from amember's failure to attend such a sitting. There is no mandatory provision inthe Regulations that in the absence of a member of the enquiry committee itsmeeting is to be adjourned.

Post OfficeHigh School vs Asgar Ali 46 DLR (AD) 127.

RecognisedNon—Government Intermediate College Teachers' (Board of Intermediate andSecondary Education, Jessore) Terms and Conditions of Service Regulations, 1979

Regulation 6—

It is theessence of the concept of probation that a person is on trial regarding hissuitability for regular appointment and is liable to be discharged when provedunsuitable.

RajshahiGirls' High School, Rajshahi and others vs Md Abdul Mannan 48 DLR 472.

Regulation 12—

The proposalfor dismissing the petitioner was passed before its approval by the Board and,as such, the order of dismissal appears to have been passed in flagrant contraventionof the proviso to Regulation 12 of the Regulations.

SheikhRoushan Ali vs Board of Intermediate and Secondary Education, Jessore andothers 48 DLR 128.

Regulation 12—

The provisoto Regulation 12 does not contemplate any post facto approval of an order ofdismissal by the Board, rather it provides that such approval should be securedbefore passing the order of dismissal of service of a teacher.

GoverningBody of Kapilmuni College, represented by the Principal Kapilmuni College vsSheikh Roushan Ali and ors 51 DLR (AD) 31.

Regulation 19—

The provisoto Regulation 12 of the Regulations, 1979 is a mandatory provision and does notcontemplate post facto approval of an order of dismissal by the Board.

SheikhRoushan Ali vs Board of Intermediate and Secondary Education, Jessore andothers 128.

RecognisedNon—Government Secondary Schools Regulation, 1977

Regulation 7(2)—

There is noprovision in the Regulation that a Managing Committee after being elected hasto be approved by the Board, although the member—secretary is required toinform the Board about the constitution of the new Managing Committee.

Dr HabiburRahman MP and others vs Shamsun Nahar 50 DLR 62.

Registration Act, 1908 & Registration Rules, 1973

RegistrationAct [XVI of 1908]

Section 17—

Award—Registration—Wherean award does not create, declare, assign, limit or extinguish any right, titleand interest in immovable property the award is not compulsorily registrable.

Adamjee SonsLtd. vs Jiban Bima Corporation 45 DLR 89.

Section 17—

A deed ofagreement though not registered is admissible in law.

Zafar Ali(Md) vs Md Momtaz Hasan and others 49 DLR 319.

Section 17(b)—

The allegedreconveyance is hit by section 17(b) of the Registration Act because thereconveyance could be made legally only by a registered document.

AnindraBhusan Ghose vs Bangladesh Government 53 DLR 493

Section 17(i)(b)—

Unless thereis registered document share of a co-sharer of immovable property cannot beextinguished. Even a Nadabipatra does not create any title in favour of theperson to whom it is made.

Tara MohanBarman vs Ananda Mohan Barman and others 48 DLR 226.

Sections 17(l)(b) & 49—

The originalof the alleged award having not been filed in Court the alleged award cannot beconsidered. The award having not been registered is not enforceable in lawunder section 49 of the Registration Act.

C JuriTalukder vs C Magni 40 DLR 532.

Section 17(1)(2), clauses (a) and (b)—

Compromisedecree comprising property which were not subject-matter of the suit—requiresto be registered.

Janab AliSarder vs Taser Ali Fakir 37 DLR (AD) 35.

Section 17(2)(VI)—

If a compromise decree contains property whichis not the subject—matter of the suit, such a document is to be registered —wherethe compromise decree compromises property which are the subject—matter of thesuit such a decree does not require registration.

Janab AliSarder vs Taser Ali Fakir 37 DLR (AD) 35.

Section 17(2)(VI)—

If thecompromise has been acted upon or is covered by decree then it is settled lawthat compromise is exempted from registration.

Janab AliSarder vs Taser Ali Fakir 37 DLR (AD) 35.

Section 17(2)(VI)—

A compromisedecree in respect of an immovable property creating transfer in respect of thesubject—matter of the suit is exempted from registration. Parul Kusum Roy vs Bangladesh 39DLR 389.

Section 28—

If propertyincluded in a deed for registration is not in existence—registration not valid.

Syed KawsarAli vs Gahar Kazi 37 DLR (AD) 177.

Section 28—

Registrationof a document with fictitious property included—A man who is a party to fraudcannot take advantage of his own fraud.

Syed KawsarAli vs Gahar Kazi 37 DLR (AD) 177.

Section 28—

Unwarrantedinclusion of property in a deed for registration may fall under 3 heads:

(1)Fictitious property is included—registration invalid;

(2) Propertyexists, but the grantor has no title to it; registration invalid;

(3) Propertyexists, but not proved to belong to the grantor, while the grantee in goodfaith believes it to be grantor's—Registration not invalid—Burden of proof incase where the deed is challenged.

Syed KawsarAli vs Gahar Kazi 37 DLR (AD) 177.

Section 28—(After amendment adding subjects (2) to section 28).

No party tothe deed entitled to question validity of its registration on the ground thatthe property did not exist—But that will not affect right of a 3rd party.

Syed KawsarAli vs Gahar Kazi 37 DLR (AD) 177.

Section 28—

A documentthe registration of which secured by inclusion of a non-existent property, etcshall not affect right of one not a party to the document.

Syed KawsarAli vs Gahar Kazi 37 DLR (AD) 177.

Sections 28 & 30—

When the questioneddocument was registered at a place by a Subregistrar where no portion of theproperty mentioned in the document was situated within the jurisdiction of thatsub—registrar the document was wholly void.

Shefali Raniand others vs Makhan Chandra Das and others 50 DLR 349

Sections 28 & 87—

Place forregistering a document relating to land—Where no part of property to which adocument relates is situated within the jurisdiction of a sub— registrar, thesub-registrar has no jurisdiction to. register the document and registrationif done will be a fraud. The defect of jurisdiction is not a mere procedure andit is not cured by section 87.

AnwarHossain vs Abul Hossain Molla 44 DLR 79.

Sections 28 & 87—

Jurisdictionfor registration—Where no part of property to which a document relates issituated within the jurisdiction of a sub—registrar, the sub—registrar willhave no jurisdiction to register the document and registration, if done, willbe a fraud. The defect of jurisdiction is not a mere procedure to be curedunder section 87.

AnowarHossain & others vs Abul Hossain Molla & others 44 DLR 597.

Section 33—

A power ofattorney executed by a person resident in Bangladesh and registered is a legaldocument,

ManindraMohan vs Ranadhir 38 DLR 240.

Section 33—

Writtenstatement filed under the authority of power of attorney executed and dulyregistered is duly presented in Court.

ManindraMohan vs Ranadhir 38 DLR 240.

Section 47—

Dispute asto the precedence of one document over the other is to be determined inaccordance with provisions of section 47 of Registration Act.

It is wellsettled that in the case of successive transfers of the self—same property infavour of different persons by a common vendor by registered documents, thedispute as to the precedence of one document over the other is to be determinedin accordance with the principle laid down in section 47 of the RegistrationAct.

Mir AbdulAli vs Md Rafiqul Islam 40 DLR (AD) 75.

Section 47—

A documentafter registration relates back to the date of its execution for determiningthe question of title. It is clear that a document that has been registeredrelates back to the date of its execution and when the question of title asbetween the two contestants claiming on the basis of successive documentsexecuted by the self—same vendor must be determined with reference to the titleto the latter on the date of execution and not of registration.

Mir AbdulAli vs Md Rafiqul Islam 40 DLR (AD) 75.

Section 47—

Section 47is designed to protect a vendee from the fraudulent operations of a vendor—Thissection applies when the same vendor successively transfers the same propertyto different purchasers at different times.

AbdulMotalib vs Iman Ali 42 DLR (AD) 123.

Section 47—

Pre-emption—Causeof action —Cause of action for pre-emption accrues on the date of registrationof a sale deed when registration is compulsory, because the right ofpre-emption arises on completion of a transfer. If a pre-emption application isfiled before registration of the sale deed, it is not to be dismissed on theground of pre-maturity if the same is registered during the pendency of preemptionproceeding.

AyeshaKhatun vs Jahanara Begum 43 DLR (AD) 9.

Section 47—

Theprovision of this section is attracted only when the two competing documentsare otherwise at par and stand on the same footing.

RafiqulIslam (Md) vs Mir Abdul Ali 44 DLR (AD) 176.

Section 47—

There can beno liberal or extended application of section 47. Such interpretation isfraught with grave consequences.

RafiqulIslam vs Mr. Abdul Ali 44 DLR (AD) 176.

Section 47—

Sale deedexecuted earlier but registered later in point of time will prevail oversale—deed executed later but registered earlier. The criterion in such casesfor the purpose of determining when the sale takes effect is not the date ofregistration but the date of execution of the deed itself.

RafiqulIslam vs Mir Abdul Ali 44 DLR (AD) 176.

Sections 47 and 60—

Long line ofdecisions of the erstwhile Dhaka High Court has followed the principle that thedate of accrual of the right of pre-emption is not the date of execution of thesale deed but the date of registration under section 60 of the RegistrationAct.

AbdulMotalib vs Iman Ali 42 DLR (AD) 123.

Sections 58, 59 & 60—

byregistered deed of transfer the title of owner of the property is legally transferredto the transferor unless the contrary is proved.

AbdulHossain Molla vs Khoteza Nessa Bibi 46 DLR 310.

Sections 59 & 60—

The Ekramamais a registered deed. So there arises under sections 59 and 60 of theRegistration Act read with sections 79 and 114 (illustration e) of the EvidenceAct a presumption that it was duly presented and registered.

Wahida Begumvs Tajul Islam 52 DLR 491.

Section 60—

Right ofpre-emption accrues on the date of registration—Stare decisis—An establishedprecedent handed down by past Judges.

AbdulMotalib vs Iman Ali 42 DLR (AD) 123.

Section 60—

Presumptionof law that the registration proceedings were regular and honestly carriedout—If the question is whether the deed of gift is genuine or not the simpleanswer is, it being a registered document under section 60 of the RegistrationAct a strong presumption is attached to it as the Privy Council stated in 33 IA60 "what remains to be shown is that the persons admitting executionbefore the Registrar was this Purshotam Das and no imposter. The question isone of fact except insofar as there was as matter of law a presumption that theregistration proceedings were regular and honestly carried out.

Abani MohanSaha vs Assistant Custodian 39 DLR (AD) 223.

Section 60—

Theregistration is itself some evidence of execution.

"Anyobjection to the sufficiency of the proof upon this point would have been idle,the circumstances being such that the evidence of due registration is itselfsome evidence of execution as against the plaintiffs."

Abani MohanSaha vs Assistant Custodian 39 DLR (AD) 223.

Section 60—

Kabuliyat—Thedefendants having executed their kabuliyats in favour of the plaintiff areestopped from denying his title—The deed of gift was registered in 1969. Thesebharatias defendants 3 to 5 executed their kabuliyats in 1970 in favour of theplaintiff, and they are estopped from denying the title of the plaintiff. Thiscircumstance is enough to prove the title of the plaintiff.

Abani MohanSaha vs Assistant Custodian 39 DLR (AD) 223.

Section 60—

All thingsdone before the registration officer will be presumed to be duly done.

"TheRegistration is a solemn act, to be performed in the presence of the competentofficial appointed to act as registrar, whose duty is to attend the partiesduring the registration and see that the proper persons are present and arecompetent to act and are identified to his satisfaction; and all things donebefore him in his official capacity and verified by his signature will bepresumed to be done duly and in order."

Abani MohanSaha vs Assistant Custodian 39 DLR (AD) 223.

Section 60—

TheRegistration Officer is not a Court and has no judicial function—He is doingonly a departmental duty.

"Aperson relying on a document is bound to prove its execution. The fact that itis registered makes no difference. It is true that no document is registeredunless the Registrar is satisfied on such enquiry as the Registration Actauthorises that it was executed by the alleged executant. But he is not a Courtand has no judicial function. The object of his enquiry is to enable him to dohis departmental duty and the opinion formed in such an enquiry, though goodfor his departmental purpose, has no value in judicial enquiry as evidence ofits execution."

Abani MohanSaha vs Assistant Custodian 39 DLR (AD) 223.

Section 60(2)—

When theoriginal will was produced and an attesting witness was also examinedpresumption under section 60(2) was not an inssue. [Discussing 30 IA 60].

In that caseno witness came forward to say that the signature of the testator in the willor in the register book was not in his handwriting. As the original will wasproduced and an attesting witness was also examined the question of presumptionunder section 60(2) of the Registration Act was not directly an issue. Theabove observation was made with reference to another contention in that case,that the testator had not a disposing state of mind, and in that connection anemphasis was laid on the solemn act of registration.

Abani MohanSaha vs Assistant Custodian 39 DLR (AD) 223.

Sections 60(2) and 67—

Executionmay be considered as proved under section 60(2) where there is other evidenceto corroborate the admission—but such evidence cannot be evidence of executionagainst third parties—When a document is necessary to be proved as executedunder section 67 and when witnesses are available, courts may not take recourseto any presumption under section 60(2). Such presumption is always rebuttable.

It followsfrom what has been noted above that where there is other evidence to corroboratethe admission, incorporated in the certificate of the Registrar under section60(2) of the Registration Act, the execution of the document may be consideredas proved.

Certificatefor the registration raises a presumption as to the admission of execution bythe executant, but such admission cannot be evidence of due execution againstthird parties. The execution of a document is to be proved in a manner asprovided in section 67 of the Evidence Act and when witnesses are available toprove a questioned document the court may not take recourse to any presumptionunder 60(2) of the Registration Act, as the Registrar's endorsement under thatsection cannot be treated as a conclusive proof of execution; but in anappropriate case, a presumption may be raised when evidence to prove executionin the manner provided in section 67 of the Evidence Act is not available dueto the executant or the material witnesses being dead or for some other goodreason. In any case, such a presumption is always a rebuttable presumption.

Abani MohanSaha vs Assistant Custodian 39 DLR (AD) 223.

Section 77—

In a suitunder section 77 of the Registration Act the court is only concerned with thequestion whether the document has been validly executed: Question about receiptof consideration money or that it is forged is beyond the scope of suit undersection 77.

Md MoshahaqAli Mia vs Rabeya Khatun 37 DLR (AD) 190.

Section 77—

A sale deedexecuted and registered later in point of time than a sale deed executed andregistered earlier in point of time cannot have precedence over the sale deedexecuted and registered earlier on the plea of earlier execution of Bainapatradeed and title of the subsequent transferee cannot relate back to the date ofexecution of the Bainapatra and section 47 of the Registration Act got nomanner of application in such a case.

Zamir UddinAhmed vs. Ataul Huq and others 49 DLR 622.

RegistrationRules, 1973

Rule 48—

Non-compliancewith the provision of rule 48 of the Registration Rules 1973 in registering thekabala in question by the Sub—Registrar made the same void. The non—compliancealso creates a prima facie doubt about the execution and registration of thekabala by the plaintiff.

Foez Ahmedvs Joynal Abedin and others 56 DLR 477.

RegistrationManual

Para 310(a), Part VI—

It isneither a rule nor a statute—It is only a departmental instruction. TheInspector General has had no power to make any rule with regard to creation ofposts and appointments.

Nurul Islamvs Bangladesh 46 DLR 46.

Regulation[XI of 1825]

Section 4(5)—

In order tosucceed on a claim ofreformation—in—situ the identity of land must beestablished by satisfactory evidence. The original owners cannot claim title ifthey after. diluvion abandoned their rights by remission of revenue or byadverse possession.

PadmabatiBiswas vs Bangladesh 44 DLR 465.

Representation of People Order

Representationof People Order [PO No. 155 of 1972]

Article 4—

Forexercising and performing any powers or functions under this Order the ActingChief Election Commissioner must get authorisation from the Commission itself,otherwise his action under the Order will be coram non Judice and withoutjurisdiction.

Jatiya Partyvs Election Commission for Bangladesh and others 53 DLR (AD) 38.

Articles 12(1), 49 & 51—

Quowarranto—A writ of quo warranto cannot be indulged in by a person to serve theulterior purpose of another individual.

Shaikh (Md)Obaidullah Raihan vs Sayed Shahidul Haque Jamal and others (Spl. Original) 54DLR 280.

Article 14(3)—

Where aright or liability is created by a statute providing special remedy for itsenforcement such remedy as a matter of course must be availed of first.

MahmudulHaque (Md) vs Md Hedayetullah and others 48 DLR (AD) 128.

Article 31(2)(d)(e)—

The Tribunalwas justified in not excluding the ballot papers from counting which containeda part of the official seal, because the law has not demanded in a mandatorylanguage the presence of a full seal on the ballot paper before its exclusionfrom count.

MoulanaDelwar Hosain Saydee vs Sudhangshu Shekhor Halder and others 52 DLR (AD) 20.

Articles 31 & 36(4)—

The HighCourt Division had no occasion to check the election material for themselves.There is, therefore, no cause or reason for the High Court Division to makesome new observations on facts beyond what have been noted by the Tribunal.

MoulanaDelwar Hosain Saydee vs Sudhangshu Shekhor Halder and others 52 DLR (AD) 20.

Article 36(4)(i)—(iv)

The ballotpapers that are required to be excluded from the count are fully described inArticle 36(4) (i)—(iv) of the Order. These sub—clauses do not require that aballot paper is to be excluded from the count if it does not contain the Codenumber or the signature or initial of the Assistant Presiding Officer.

MoulanaDelwar Hosain Saydee vs Sudhangshu Shekhor Halder and others 52 DLR (AD) 20.

Articles 44A, 44B, 73 & 74—

SinceArticles 73 and 74 entail penal sanction, proof of an offence under them needs·to satisfy the criminal standard. This Court is not sitting in judgment norpassing penal sentence on the violation of Articles 73 and 74. Any finding oftheir violation in the context of the instant case can be said to be onlyincidental. This Court is sitting to decide whether the provisions of Articles44A to 44D have been infringed thus invalidating the election result. Thisaspect being essentially a civil matter, the required standard of proof is‘satisfaction on a balance of probabilities.’

SudhangshuShekhor Halder vs Chief Election Commissioner and others 55 DLR 655.

Article 50—

When thepetitioner has impleaded all the necessary parties mere impleading of theReturning Officer and the Assistant Returning Officer so as to say misjoinderof these parties cannot by itself be a ground for holding that there was totalnoncompliance of the provision of Article 50 of the Order.

Advocate MdAbdul Hamid vs Md Fazlur Rahman 50 DLR 441.

Article 50—

When thepetitioner impleaded all the necessary parties the mere fact that some otherpersons have been made parties in the election petition in itself cannot be aground for rejection of the election petition.

Advocate MdAbdul Hamid vs Md Fazlur Rahman 50 DLR 441.

Article 50, 51(2) & 58 (a)—

Article 50mentions the parties who are to be impleaded but does not prohibit impleadingof parties who may be considered by the petitioner to be proper parties. Whenall necessary parties have been joined to the election petition, the joining ofthe Returning Officer and the Assistant Returning Officers cannot itself be aground for dismissal of the election petition under Article 58(a) of the Order.

Advocate MdAbdul Hamid vs Md Fazlur Rahman 50 DLR (AD) 80.

Articles 51 and 62—

In view ofthe order of the Election Tribunal allowing the appellant's petition in part,the preliminary objection raised against maintainability of his appeal isrejected.

SS Halder vsMoulana Delwar Hossain Saydee and others 52 DLR 58.

Article 56—

TheTribunal, if it thinks fit, may order personal appearance of the party beforethe Court.

Al-HajAkhtaruzzaman Chowdhury (Babu) vs Mohammad Kabir and others 47 DLR 149.

Article 58(a)—

Joinder ofunnecessary parties and prayers cannot be considered fatal to the trial of anelection petition when there are necessary parties and prayers in thatpetition.

Idrish AliBhuiyan (Md) vs Dr Alauddin Ahmed and ors 55 DLR 19.

Article 62(3)—

Theprovisions of the Code not inconsistent with the Order being made applicable toElection Petition and the appeal being the continuation of the Electionpetition, the provisions of the Code which do not bar dispensing with serviceof notice to the non-contesting parties are applicable to appeal arising outof election petition.

MoulanaDelwar Hossain Saydee vs Sudhangshu Shekhar Halder and others 51 DLR (AD) 171.

Article 65—

An election,in spite of some illegalities or irregularities, cannot be set aside unless itis proved that the result of the election has been materially affected thereby.

MahmudulIslam Chowdhury vs Md Sultanur Kabir Chowdhury and others 47 DLR (AD) 161.

Article 65(a)—

For failureof the Presiding Officer to take proper steps when Abdul Mannan did not show upand when Shahidul Islam acted in his place unlawfully, the voters cannot bedisenfranchised and the candidates should not be penalised to go through themotion of another polling particularly when there is absolutely no finding thatShahidul Islam's participation made a difference in the voting pattern or thatthe appellant had a connivance in the matter or that he benefitted from anillegality of which he had prior knowledge.

MoulanaDelwar Hosain Saydee vs Sudhangshu Shekhor Halder and others 52 DLR (AD) 20.

Articles 73(3)(a) & 73(4)—

The onlyevidence in support of the allegation against the respondent has come by way oforal evidence of the petitioner's party men. It would not be prudent to takesuch testimony at face value. Petitioner has not been able to prove therespondent guilty of corrupt practice on the basis of the whole evidence.

SudhangshuShekhor Halder vs Chief Election Commissioner and others 55 DLR 655.

Article 91A—

When theElection Commission accepted the formation of the electoral committee which wasformed with the approval of the Supreme Court the petitioner has no cause to beapprehensive about the formation of the committee.

BangabirKader Siddiqui, BU vs Government of Bangladesh and ors 54 DLR (AD) 64.

Rin Shalish Ain, 1989

Rin ShalishAin [XV of 1989]

Section 7—

Thedetermination of the existing market price of similar land at the time of saleof the case land is one of the conditions precedent and should have beendetermined at the very beginning before assuming jurisdiction by the RinSalishi Board. Non detemination of such market price not only amounts tonon-exercise of jurisdiction but also violation of Rin Salishi Ain.

Jahirul Islam (Md) vs Chairman, Settlement Board and AssistantCommissioner (Land) and others 48 DLR579.

Rules of the High Court Division

Rules of theHigh Court Division

Chapters II & III of Part 1 (Volume 1)—

The SingleVacation Judge is the repository of all manners of jurisdiction that the HighCourt Division enjoys, provided the matter is urgent.

AzizurRahman alias Md Azizur Rahman vs Government of Bangladesh represented by theSecretary, Ministry of Housing and Public Works and others 50 DLR (AD) 8.

Rules of theHigh Court of Judicature for East Pakistan

Rules 7 & 9—

Partydirectly affected in writ petition matter to be served with notice.

Md Ayub vsBangladesh 39 DLR (AD) 111.

Rupali Bank (Employees) Service Regulations, 1981

Rupali Bank(Employees) Service Regulations, 1981

Regulations 13(2) & 28—

Theobjective to get rid of unwanted employees without taking recourse to procedureof disciplinary action is likely to be frustrated if termination is madedependent on actual receipt of notice pay.

Rupali Bankand another vs Md Solaiman and others 49 DLR 526.

Regulation 16—

Duty to paypensions to a person who has worked for the stipulated period of time remainsan undercharged contractual obligation—Where the employee retires or isterminated there must exist provision for payment of pension, describing themode and timing of payment of pension to terminated employees, else courts willimply terms to that effect.

MA Jalil vsRupali Bank Ltd & others 54 DLR 566.

Rural Electrification Board (Employees) Service Regulation, 1986

RuralElectrification Board (Employees) Service Regulation, 1986

Regulation 28—

Negligenceof duty not being a major offence the order dismissing the petitioner engineerfrom his service is illegal.

Nurul Huq vsSecretary, Rural Electrification Board & another 45 DLR 666.

Rural Electrification Board Ordinance, 1977

RuralElectrification Board Ordinance [LI of 1977]

Section 3(2)—

WritPetition when maintainable without impleading the "Board"—As theSecretary of the Board who passed the impugned order on the basis of thedecision of the Board and its, Chairman, being the chief executive, have beenmade parties, it cannot be said that the writ petition is not maintainable.

Abdul Jalilvs Chairman, REB 45 DLR 24.

Sale of Goods Act, 1930

Citation: 42 DLR 487, 47 DLR 423

Subject: Sale of Goods

Delivery Date: 1970-01-01

Sale of Goods Act [III of 1930]

Section 2(7)—

In the present case concerning adjustment of loan by share certificates, the provisions of Banking Companies Ordinance shall be read and construed in addition to section 171 of the Contract Act. From the provision of the Sale of Goods Act it appears that the shares of a company are also goods and as such moveable property. Money is a species of goods over which lien may be exercised. Where a banker has advanced money to another, he has a lien on all securities which come within his hand for the amount of his general balance unless there is an express contract to the contrary.

Sonali Bank vs Bengal Liner Ltd 42 DLR 487.

Section 2(7)—

The right of pre-emption is attached to immovable properties, but the shares of a company are not properties in that sense, they are goods as defined and described in Sale of Goods Act.

United Chemicals and Pharmaceuticals Ltd and others vs Niranjan Dey and others 47 DLR 423.

Sales Tax Act, 1951 & Sales Tax Ordinance, 1982

Sales TaxAct [III of 1951]

Section 27(3)—

Therespondents having accepted the tax return filed by the petitioner and nothaving assessed her cannot be allowed to retain the amount allegedly paid inexcess on the plea of illegal enrichment of the assessee but even then thepetitioner cannot get any refund because of her failure to claim the refundwithin 4 years.

Nisha RaniDevi vs National Board of Revenue, People's Republic of Bangladesh and others52 DLR 230.

Sales TaxOrdinance [XVIII of 1982]

Section 4(1)—

Notificationexempting duty and tax—Legality of subsequent notification and question ofestoppel—The notification under section 19 was issued without any conditionexcepting the "terms and conditions" therein. Subsequent notificationtaking away exemptions can have no operation when a right had vested in theimporter. The importer having acted upon the assurance given, the Governmentcannot retrace its steps and ask for duty at the rate mentioned in subsequentnotification. This is clearly a case of estoppel, the well—settled principle ofpromissory estoppel.

Collector ofCustoms Chittagong vs A Hannan 42 DLR (AD) 167.

Securities & Exchange Ordinance, 1969

Securities& Exchange Ordinance [XVII of 1969]

Section 19—

Informationand documents called for from petitioner do not relate to performance of anyfunction under the Ordinance but relates to his business of dealing in shareswith his customers. This does not entitle him to take shelter under theprovision of section 19 of the Ordinance.

KhurshidAlam vs Securities and Exchange Commission and others 51 DLR 534.

Service Regulations of the Teachers of Non-Government Colleges

ServiceRegulations of the Teachers of Non-Government Colleges

Regulation 16—

When aperson is suspended without any material whatsoever against him and he had beenkept in that condition for months together, the Court should interfere in sucha case in the interest of justice.

AltafHossain (Md) vs Md Abdul Rahim and others 51 DLR 527.

Service Rules of Petro Bangla

ServiceRules of Petro Bangla

Rule 9—

Thedeclaration does not put an embargo on the employer to look into the personalrecord of the declarant to see if the declaration made in the verification rollis correct or not.

HabiburRahman Khan (Md) vs Bangladesh, represented by the Secretary & others 53DLR (AD) 105.

Services (Re-Orgaoisations and Condition) Act, 1975

Services (Re-Orgaoisationsand Condition) Act [XXXII of 1975]

Section 2(b)—

Section 2(b)thereof provided that "In this" Act, "pay" includes salary,allowance and any other emoluments by whatever name called.

Thememorandums introducing Annual Festival Bonus in 1980, re-introducing DearnessAllowance in 1982 and again introducing Festival Allowance in 1984 were notorders passed in exercise of powers under any provisions of Act XXXII of 1975but were executive orders making ex-gratia payments in exercise of inherentdiscretionary power to grant financial relief. Definition of the word"pay" in section 2(b) of Act XXXII of 1975 not to be imported to theabove office memorandums.

Md Israil vsSecretary, Ministry of Industries 40 DLR 520.

Section 2(b)—

Governmentdid not intend to include Dearness Allowance for payment of Festival Bonus.

Md Israil vsSecretary, Ministry of Industries 40 DLR 520.

Para 2(X)—

In broadconcept the service of the Republic means all services of Bangladesh. It is ageneric term and person who is getting emolument because of his service in theRepublic is a public officer. In that sense, the member of the judicial serviceand the magistrate exercising judicial functions are no doubt public officersin the generic term. But within the scheme of the Constitution of the People'sRepublic of Bangladesh the nature of judicial service has been contemplated asdistinct and· separate from other works performed by other officers of othercadre services. The judicial service is, of course, included in the definitionof service of the Republic but they have been separately treated within thescheme of the Constitution as reflected in Articles 115, 116, 116A and 152(1)of the Constitution.

Secretary,Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82.

Para 2(X)—

Per LatifurRahman J : Article 136 of part IX speaks of reorganisation of service of theRepublic by creation, amalgamation or unification of services and such law mayvary or revoke any condition of service of a person employed in the service ofthe Republic. This concept of reorganisation of service is available to allother civil posts including executive service of Republic other than members ofthe judicial service and magistrates exercising judicial functions as they havebeen treated separately under Articles 115, 116 and 116A of the Constitution.Article 136 refers to all general services of civil posts. 'Judicial service'has been separately treated in the relevant constitutional provisions and assuch conditions of service are to be separately framed under Article 133 and itcannot be tagged as Bangladesh Civil Service (Judicial) under paragraph 2(x) ofAct XXXII of 1975.

Secretary,Ministry of Finance Dhaka vs Md Masdar Hossain 52 DLR (AD) 82.

Sections 3 & 5—

Theappellants' argument that by receiveing the same scale of pay the preventiveofficers and appraisers have become members of the same grade with effect from26-6-83 and therefore, the Preventive Officers became senior as a class tothose who have been appointed directly as Appraisers after 26-6-83 cannot beaccepted for the simple reason that these two classes of officers are gradeddifferently and these posts have not been treated as equivalent posts, althoughthey are drawing the same scale of pay.

Azizul HuqSikder and others vs Collector of Customs, Chittagong 49 DLR (AD) 172.

Section 4—

Notification—Guidelinefor promotion—In the impugned guideline prepared by the Ministry ofEstablishment there is no justification for reservation. So the reservation of75% of posts for members of Civil Service (Administration) was madearbitrarily.

Abdul Mannan(Md) vs Government and others 5 DLR 237.

Section 4—

ThePreventive Officers, Appraisers, Superintendents, Inspectors and IntelligenceOfficers cannot be placed and treated in the same grade and equal status tilltheir services are not amalgamated under section 4 of the Services(Reorganisation and Conditions) Act.

SalahuddinTalukder (Md) vs Government of the People's Republic of Bangladesh 56 DLR 161.

Section 5—

The Gradesof Appraisers and Preventive Officers still remain the same as in theNotification dated 20-12-77. Preventive Officers cannot claim upgradation byimplication. It must be done by an act of volition by the Government by GazetteNotification.

Azizul HuqueSikder and others vs Collector of Customs, Chittagong and others 49 DLR (AD)172.

Settlement of Stock Exchange Transactions Regulations, 1998

Settlementof Stock Exchange Transactions Regulations, 1998

Regulations 7 & 8—

DSE has an obligationto pay up the outstanding amount of the sale proceeds of the 'shares to thepetitioner through respondent No. 6 irrespective of the fact whether therespondent Nos. 8 and 9 paid for the said shares and the DSE could recover thefull amount or not from the latter.

FarzanaMoazzem vs Securities and Exchange Commission and others 54 DLR 66.

Shops and Establishments Act, 1965 & Shops and Establishments Rules, 1970

Shops andEstablishments Act [VII of 1965]

Section 2(d)—

Whether thePlaintiffs are workers as defined in labour laws having no remedy in CivilCourt.

Let us nowsee whether the plaintiffs are workers as defined in the Labour Laws so thatthey may be said to have no remedy in the Civil Court. The case reported in 35DLR 151 relates to some employee of another Nationalised Bank that is, theBank. In that case of Criminal Prosecution of a Branch Manager of the said Bankunder the Provisions of Shops and Establishments Act, 1965 the question arosewhether such nationalised Banks came under the purview of the Shops andEstablishments Act.

It wasnoticed that among other concerns banking company 'and a bank' were alsoincluded within the definition, and after elaborate discussion a Division Benchof this Court held that the Bank was a Commercial Establishment. There is noreason why the Janata Bank being a similarly Nationalized Bank should not alsobe treated as a Commercial Establishments as defined in the Shops andEstablishment Act.

It is clearin the light of this definition that the plaintiffs who were employed to doclerical work in a commercial establishment like the Janata Bank fall withinthe definition of worker. The decision reported in 35 DLR 151 does not appearto have been placed from the Bar before his Lordship while deciding the casereported in 39 DLR 167 where it has been held that the employees of the RupaliBank, a similarly Nationalized Bank, are not workers under the said Act. Forobvious reasons I respectfully disagree with the Single Bench decision. 39 DLR167 not followed:

Theplaintiffs are workers. Labour Court is the proper forum for redress of theirgrievance. Civil Court has no jurisdiction to entertain the two suits. MdShahabuddin vs Janata Bank 41 DLR 94.

Sections 8& 9—Any establishment can reduce the upper limit of daily and weekly hoursof work to a lower level in pursuance of a settlement with its workers but itcannot exceed the prescribed daily and weekly hours of work in any case.

GeneralManager, Jamuna Oil Company Ltd vs Chairman, Labour Court and others 51 DLR(AD) 91.

Sections 8 & 9—

GeneralManager, Jamuna Oil Company Ltd vs Chairman, Labour Court and others 51 DLR(AD) 91.

Sections 8 & 9—

If theestablishment reaches a settlement with the workers in reducing the hours ofwork the workers' overtime will begin from the hour when the settled hour ofwork in reached.

GeneralManager, Jamuna Oil Company Ltd vs Chairman, Labour Court and others 51 DLR(AD) 91.

Shops andEstablishments Rules, 1970

Rule 4—

If theestablishment reaches a settlement with the workers in reducing the hours ofwork the workers' overtime will begin from the hour when the settled hour ofwork in reached.

GeneralManager, Jamuna Oil Company Ltd vs Chairman, Labour Court and others 51 DLR(AD) 91.

Small Cause Courts Act, 1887

Small CauseCourts Act [IX of 1887]

Section 15—

SCC Judgehas no jurisdiction to go into the question of paramount title, and in doing soto set aside the decree of a civil Court obtained in a suit for specificperformance of contract. The Small Cause Court has no jurisdiction to go intothe question of title except — incidentally.

SudhangsuKumar Chowdhury vs Ali Hossain 46 DLR (AD) 151.

Section 15—

A tenantcannot be permitted during the continuance of the tenancy to resist a suit foreviction by his landlord without surrendering his possession to his landlord.

MonowaraBegum vs Atiqullah 51 DLR 550.

Section 15, Article 3 Second Schedule—

High CourtDivision fell into an error of law in holding that sec Judge had nojurisdiction to decide the validity of the order of cancellation of validationof the power of attorney. Whether the order and then the cancellation thereofare legally valid or not are questions germane to the subject matter incontroversy and no extraneous to the suit. SCC Judge refused to exercise ajurisdiction which was lawfully vested in him and the High Court Division alsotook an erroneous view of the matter.

Anath BandhuGuha & Sons Ltd vs Babu SS Halder 42 DLR (AD) 244.

Sections 15 & 16—

The suitfalling within the exclusive jurisdiction of the Small Cause Courts Judge buterromeously tried by a court other than the sec Judge suffers from no legalinfirmity and the trial cannot be vitiated. Section 23 of the Small CauseCourts Act negatives the proposition that section 16 of the Act altogetherdeprives the civil Court of the jurisdiction conferred by section 9 of the Codein respect of the small causes suit.

WahidaRashid vs Miron Muhammad Zahidul Hoque 43 DLR 115.

Section 15(1) & (4)—

Plaintiff bya conscious choice filed the suit for eviction of the defendant as anunauthorised occupant liable to be evicted without notice—his suit is notmaintainable in the Court of Small Causes.

FazlurRahman Shah vs Md Arifur Rahman @ Badsha 48 DLR (AD) 128.

Section 15(2) & Article 4 Second Schedule—

In order todecide whether a suit is one of a Small Cause Court nature or not, one has torefer to the allegations made in the plaint. If the allegations make out a'prime facie' case which falls well within the cognizance of a Small CauseCourt, it will be immaterial what the defence is.

HajiKasimuddin Mandal being dead his heirs Afroza Bewa and others vs Md JalaluddinPramanik 48 DLR (AD) 205.

Section 17—

A SmallCause Court is invested with the jurisdiction to entertain an application forreview of its judgment or order as contemplated under section 114 read withOrder XLVII, rule 1 of the Code and decide it on merit.

GajendraNath Mondal and others vs Motia Begum and others 50 DLR 429.

Section 17—

When a SCCSuit is dismissed for default provision of Order IX, rule 9 of the Code ofCivil Procedure is applicable.

Abdul Wareshvs Md Abdul Halim and others 53 DLR 608.

Section 17(1)—

When theparty seeking to have the ex parte decree set aside is found willfullyneglectful to comply with provision of section 17 (regarding deposit for thedues or furnishing security bond) even though the defect was brought to hisnotice—Ex parte decree cannot be set aside.

Md EbadullahBepari vs Nikhil Chandra Das 37 DLR (AD) 174.

Sections 17(1)—

Restorationof SCC suit after it was dismissed for default—Section 17(1) does not indicatethat an application for setting aside an order of dismissal of an sec suit fordefault is barred. An order of dismissal of a suit for default is covered bythe expression "any case decided" appearing in section 25 of the Actwhich shall not be given a restricted meaning to include only a case decided onmerits. The expression shall also mean case disposed of without a decision onmerits and, as such, the High Court Division can interfere with such ordersunder section 25 in order to remove the substantial injustice caused.

HossainiaAshraful Ullum Madrasah vs Munsur Ahmed 43 DLR 473.

Section 23—

The SCCjudge was within his competence to decide the question of title incidentallyand that would not be the final determination of title to be barred by resjudicata. The judge has not committed any illegality in coming to a finding asto the question of title over the suit—holding.

MG Jilani vsMd Wahed Uddin Sardar 44 DLR 348.

Section 23—

The suitfalling within the exclusive jurisdiction of the Small Cause Court Judge buterroneously tried by a court other than the sec Judge suffers from no legalinfirmity and the trial cannot be vitiated. Section 23 of the Small CauseCourts Act negatives the proposition

that section16 of the Act altogether deprives the civil Court of the jurisdiction conferredby section 9 of the Code in respect of the small causes suit.

WahidaRashid vs Miron Muhammad Zahidul Hoque 43 DLR 115.

Section 23—

The Courtmay refuse to try the sec suit and return the plaint only when the reliefclaimed is dependent on the proof or disproof of complicated question of title.The provision of section 23 does not impose an absolute bar. If the pointsinvolved can be determined by way of dealing with the same incidentally, thecourt is left with the discretion to try the suit.

JogeshChandra Pal vs Ershad Hossain Choudhury 43 DLR 170.

Section 23—

Theplaintiff's title has not been challenged by anybody except the defendant whois admittedly a tenant in respect of the suit premises. A tenant has no rightto challenge the title of the landlord in the name of a 3rd person who isabsent and not coming to claim the suit property.

Faiz AhmedChowdhury vs Arif Ahmed 49 DLR 89.

Section 23—

When in asuit heard by a Small Causes Court any complicated question of title toimmovable property is involved it would be a wiser course to return the plaintto act under section 23 of the Act.

Rabiul Alamand another vs Sree Bidhan Kumar Deb, Advocate 50 DLR 286.

Section 23—

The SCCJudge upon considering the suit found that serious question of title has beeninvolved in the suit—He has illegally decided the question of title finally infavour of the plaintiff.

Dr AbdulGani vs Mujibur Rahman & others 51 DLR 510.

Section 25—

Restorationof SCC suit after it was dismissed for default—Section 17(1) does not indicatethat an application for setting aside an order of dismissal of an sec suit fordefault is barred, An order of dismissal of a suit for default is covered bythe expression "any case decided" appearing in section 25 of the Actwhich shall not be given a restricted meaning to include only a case decided onmerits. The expression shall also mean case disposed of without a decision onmerits and, as such, the High Court Division can interfere with such ordersunder section 25 in order to remove the substantial injustice caused.

HossainaAshraful Ulum Madrasah vs Munsur Ahmed 43 DLR 473.

Section 25—

Decree bythe Court of Small Causes—Ambit of revision—The propositions laid down in thejudgment of the High Court Division are wide and speculative in thatconclusions of fact reached by the sec judge in the instant case are notperverse; it is not a case where all matters have not been taken intoconsideration; it is not a case of mistrial; there is no mistake in placing theonus of proof. The question of preventing miscarriage of justice or grossillegalities does not arise.

Abdur Razzaqvs Ansar Ali 43 DLR (AD) 212.

Section 25—

The Court'sjurisdiction in exercise of its power of revision being wider and consideringthe long—standing dispute between the parties, the case instead of beingremanded back to the trial Court, be decided by this revisional Court, in theinterest of justice, although consideration of evidence is necessary.

HaragramTrust Board vs Dr Golam Mortuza Hossain 47 DLR 160.

Section 25—

Thepetitioner was found as a tenant under the respondents to whom he had paid rentand as such he is debarred from setting up a claim of title in himself toresist the decree for eviction.

Atiqullah(Md) vs Sanawara Begum and others 50 DLR (AD) 112.

Section 25—

As no errorof law could be pointed out nor could this court find any such error in thefinding of the trial Court that could be said to have vitiated its decision, nointerference by this court is called for.

JahanaraHasan and another vs Md Nazrul Islam 50 DLR 65.

Societies Registration Act, 1860

SocietiesRegistration Act [XXI of 1860]

Section 20—

BRAC andothers vs Professor Mozaffar Ahmed and others 54 DLR (AD) 36.

Sonali Bank Employees Service Regulations, 1981 & Sonali Bank (Staff) Service Rules

Sonali BankEmployees Service Regulations, 1981

Section 1—

Theclassification of officers and other employees as given in Schedule I of theSonali Bank Employees Service Regulations, 1981 is nothing but an internalagreement made by the Bank for staff management for the purpose of theirinternal administration only. This classification made in the schedule has nothingto do with the definition of worker.

Sonali Bankand another vs Chandon Kumar Nandi 48 DLR 330.

Sonali Bank(Staff) Service Rules

Rules 40 & 42—

Diseiplinaryproceeding—Enquiry report, etc. having been placed before the Board ofDirectors and the Board having taken resolution to remove the employee fromservice amounts to giving approva! to the entire proceeding.

Nurul HuqKhah vs GM, Sonali Bank 42 DLR (AD) 179.

Specific Relief Act, 1877 [Section 1 - 41]

SpecificRelief Act [I of 1877]

Sections 5 & 56—

In a suitfor permanent injunction simpliciter an issue whether the registered deed isforged or not cannot be decided.

Sushil KumarPaik and another vs Harendra Nath Samadder and another 55 DLR (AD) 9.

Section 9—

If thejudgment—debtor against whom a decree has been passed under section 9 canestablish title in a suit subsequently filed by him, he can get the relief. Noinjunction can be granted on the plea of title.

MosammatMonowara Begum vs Syed Ashrafuddin 40 DLR (AD) 251.

Section 9—

Whether thedecree obtained by the repondent Nos. 1 and 2 under section 9 of the SpecificRelief Act is executable in view of the appellant's application for temporaryinjunction against the execution of such decree.

An aggrievedjudgment—debtor under section 9 of the Specific Relief Act can institute a suitto establish his title and on obtaining a decree can recover possession of theproperty in question.

MosammatMonowara vs Syed Ashrafuddin 40 DLR (AD) 251.

Section 9—

When aperson is dispossessed from any immovable property he may file a suit torecover possession thereof and the question of title will not be a matter ofdecision in that suit.

BisheswarDutta vs G Chandra 39 DLR 8.

Section 9—

All that theCourt can do under section 9, Specific Relief Act, is to restore the plaintiffsto physical possession.

BisheswarDutta vs G Chandra 39 DLR 8.

Section 9—

Underprovision of section 9, removal of structures raised by the defendant on theproperty cannot be ordered.

BisheswarDutta vs G Chandra 39 DLR 8.

Section 9—

In a suitfor recovery of possession under section 9 of the Act, notwithstanding anyother title that may be set up in such a suit, the person dispossessed withoutthe consent or otherwise than in due course of law, can claim for recovery ofthe possession.

Abdur Rauf (Md)vs Abdul Hamid and othes 49 DLR (AD) 133.

Section 9—

Section 9 ofthe Specific Relief Act does not authorise the Court to order for demolishingor removing dwelling huts or other permanent structures standing in the suitland while effecting restoration of possession.

Rokeya Begumvs Md Abdur Rahman alias Ganda being dead his heirs: 1(a) Md Abdul Barik andothers 50 DLR 271.

Section 9—

There is noscope of deeming in respect of possession and dispossession which are very realthings in life. In view of clear cause of action as averred in the plaint tohave arisen on 1-6-96, there is hardly any scope for such academic exercise.

Jebun NessaZaman and others vs Hosne Ara Lili 53 DLR 394

Section 9—

Possessionof the plaintiff as a monthly tenant was the constructive possession of herlandlord. If such monthly tenant allows someone as sub-lessee to enter intopossession of the leased shop by infracting the terms of the lease, and withoutthe consent of the landlord, the possession of such sub-lessee cannot be termedto be the constructive possession of the tenant for purpose of a suit undersection 9 of Specific Relief Act.

Jebun NessaZaman and others vs Hosne Ara Lili 53 DLR 394.

Section 9—

In theabsence of clear findings that the plaintiff was in possession and dispossessedby the defendants within six months of the institution of the suit, the trialCourt fell in serious error of law in decreeing the suit for possession.

Jebun NessaZaman and others vs Hosne Ara Lili 53 DLR 394.

Section 12—

Abdul SamadGazi vs Abdul Khalil Gazi and others 53 DLR 262.

Sections 12 and 22—

There isabsolutely no reason in the absence of fraud or that the price was grosslyinadequate to hold that there is any ground for asking the plaintiff pay anycompensation or solarium to defendant No. 1.

AzharulIslam vs Idris Ali 39 DLR 342.

Sections 21 & 42—

Although inresponse to the public notice the plaintiff submitted two tenders and alsodeposited the required 25% deposits but since those tenders were not acceptedby the railway department, no agreement came into existence and they had noobligation, legal or otherwise, to allot any plot of land in favour of theplaintiff.

ShaikhJahangir Hossain vs Government of Bangladesh and others 55 DLR 405.

Section 22—

There is nojurisdiction to entertain a second appeal under section 100 CPC on the groundof erroneous finding of fact although the error may be gross or inexcusable. NurMohammad vs Sultan Ahmed 40 DLR 369.

Section 22—

Suit forspecific performance of contract—No case of non-enforcement of the contracthaving been made out by the defence at the trial, the legal course was todecree the suit.

FerojaKhatoon vs Brajalal Nath 43 DLR 160.

Section 22—

The properfrom of decree is to direct specific performance of the contract between thevendor and the plaintiff and direct subsequent transferee to join in theconveyance so as to pass on the title which resides in him to the plaintiff inorder to avoid all controversies.

Ezaher Meahand others vs Shaher Banu and others 49 DLR (AD) 85.

Section 22—

Specificperformance of contract—Question of hardship—Hardship is to be consideredagainst the circumstances existing at the time of the contract.

Yousuf (Md)vs Hajee Abdul Wahab being dead his heirs Hajee Shahida Khatun and ors 51 DLR412.

Section 22 —

In a suitfor specific performance of contract a decree cannot be passed to oust thepersons from their homestead if there is possibility that they shall have to goto the street leaving their paternal property.

BiplobChandra Das and another vs Biren Chandra Das and others 52 DLR 586.

Section 22—

In a suitfor specific performance of contract for sale of immoveable property plaintiffis entitled to delivery of possession. A trespasser in the suit property isliable to be impleaded in the suit and evicted from the suit property to giveeffective relief to the plaintiff.

Nurul Islamand others vs Jamila Khatun and others 53 DLR (AD) 45.

Section 22—

Thepetitioners are mere trespassers and they could not establish their claim ofauction purchase of the suit property and as such they cannot challenge theexercise of discretion in favour of the plaintiffs.

Nurul Islamand others vs Jamila Khatun 53 DLR (AD) 45.

Section 22—

The reliefof Specific Performance of Contract is a discretionary one. The Court if itfinds that it would be unconscionable to allow it will not allow SpecificPerformance.

AbdurRazzaque Mollah vs Md Qayum Mollah & otheres 53 DLR 535.

Section 22—

SpecificPerformance—Hardship—A contract duly entered into by the contracting partieshas a solemnity of its own and ordinarily the Court has no option to refuse itsspecific performance unless it comes within the purview of an exception givingthe plaintiff an unfair advantage over the defendant, or its performance wouldinvolve some hardship on the defendant which he did not foresee.

Shah Alam(Md) vs Abdul Hashem Bepari and others 54 DLR 550.

Section 22 Part II—

Subsequentfluctuations in price, that is, rise or fall in the price of a property afterthe date of contract is not considered to be ground to refuse specificperformance by either party.

AzharulIslam vs Idris Ali 39 DLR 342.

Section 22—

ClauseII—Amendment of pleadings—Introduction of alternative defence on the ground ofhardship—A completely different defence—Contract even if subsisting can stillbe avoided on this ground.

We find thatthis amendment has been introduced so that, in the event of the court's findingthat the contract is subsisting, the defendant—petitioner can still avoid it onthe ground of hardship. In other words, the defendantpetitioner is now seekingto introduce an alternative defence. This defence is now of a completelydifferent kind, both in terms of content and form. It will have the effect ofintroducing a new controversy between the parties, a controversy which did notexist before.

Defendant—petitioneris not precluded from raising alternative defence—introduction of alternativedefence at this stage of the suit will compel the plaintiff to arrangeproduction of evidence in rebuttal of a new defence.

In our viewthe petitioner was not precluded from raising a new alternative defence,provided it did not affect the parties in any appreciable manner. If theamendment was sought to be made before the positive hearing of the suit itcould not have been said that the parties were affected thereby but in thefacts and circumstances of this case it can legitimately be argued by theplaintiffopposite party that the introduction of an alternative defence atthis stage of the suit will be highly prejudicial to him, for he will also haveto arrange production of evidence in rebuttal of a new defence.

Major(Retd). M Afsaruddin vs Kamal Rahman 41 DLR 190.

Section 22, Items I and II—

The reliefsought for by the appellant does not lie in Item—I stating that the contract ifenforced would give the plaintiff an unfair advantage over the defendant. Highrelief lies in Item—II wherein it is stated that the performance of thecontract would involve hardship on the defendant.

L Rahman vsG Ahmed 39 DLR (AD) 242.

Section 22, Items I and II—

Merehardship to the defendant will not be a circumstance falling under Item—II.

L Rahman vsG Ahmed 39 DLR (AD) 242.

Section 22, Items I and II—

Discretionof the court should not be arbitrary but sound and reasonable, guided byjudicial principles.

L Rahman vsG Ahmed 39 DLR (AD) 242.

Section 22, Items I and II—

It may bebetter that such principles be left undefined—Each case must be decided on itsown fact.

L Rahman vsG Ahmed 39 DLR (AD) 242.

Section 22, Items I and II—

When thehardship is on both sides proper course is to examine the admitted facts andcircumstances as furnishing the safest guide.

L Rahman vsG Ahmed 39 DLR (AD) 242.

Section 22, Items I and II—

The hardshipis on the defendant which he did not foresee whereas on the other hand there isno such hardship on the plaintiff.

L Rahman vsG Ahmed 39 DLR (AD) 242.

Section 22, item II—

Unless it isproved by unimpeachable evidence that the facts constituting hardship werethere from the inception when the agreement for sale was executed the court maynot interfere. The mere fact that there has been a rise in the value of thesuit property with the lapse of time will not constitute any hardship to refusespecific performance of contract.

Hamida BegumChowdhury vs Ahamad Hossain Khan and ors 50 DLR 276.

Section 22(II)—

'Hardship'as contemplated in section 22(11) means "Hardship' considered in thecircumstances that existed at the time the contract was made.

Quazi DinMohammad vs Alhaj Arzan Ali and another 47 DLR (AD) 48.

Sections 22 & 24—

Specificperformance of contract—when plaintiff is not entitled to it—The plaintiffwithout depositing the transfer fee, without offering the balance fee anddemanding amicable registration filed the suit when he was faced with noticesand filing of a suit by defendant No. 2. In such circumstances he is notentitled to specific performance of contract due to the laches and default inperforming his part of the obligations when there is no default of the defendantNo. 1.

SilverEstate Ltd. vs Abdul Hakim Mia 43 DLR 360.

Sections 22 & 24—

Solatium—Specificperformance was refused on the ground of hardship of the respondent. Ifsolatium is paid only on consideration of the present market value of the landin question then the purpose of refusing specific performance on the ground ofhardship will be defeated.

TobarakUllah vs Rani Gupta 43 DLR (AD) 100.

Sections 22 & 24—

Granting orrefusal of relief for specific performance of contract is discretionary withthe Court. On payment of reasonable compensation or solacium, the Courtreserves the right of refusing performance of such a contract.

SantoshKumar Paul vs Nuruddin Ansari 47 DLR 72.

Sections 22 & 42—

The trialCourt has no jurisdiction to convert the suit for specific performance ofcontract into one for determination of title as was ruled by the AppellateDivision in the case of Golam Kader vs Abdul Khaleque Choukder, 43 DLR (AD)107.

Eser AliSheikh (Md) vs Md Mokarram Ali and others 53 DLR 612.

Section 24(b)—

When therespondent came· to the Court seeking specific performance it is implied thathe is ready to make the deposit whenever so directed by the Court.

Quazi DinMohammad vs Al-haj Arizan Ali and another47 DLR (AD) 48.

Sections 25 & 26—

Dispute oftitle in a suit for specific performance—there is no scope for deciding thequestion of title of the defendant No. 1 in this suit for specific performanceof contract by the buyer or to declare that defendant Nos. 2 and 3 have notitle in the suit—property. Specific performance being an equitable reliefCourt is not bound to grant the same merely because the contract between theplaintiff and defendant No. 1 has been proved.

SilverEstate Ltd. vs Abdul Hakim Mia 43 DLR 360.

Section 27(b)—

Onus ofproof—Subsequent tranferee to prove the negative that he had no knowledge ofthe transfer—Onus will shift to the plaintiff to prove to the contrary of it.

MuktarHussain Khan vs Suresh Chandra Dey 42 DLR 86.

Section 27(b)—

Threeconditions in clause (b) to be satisfied by the subsequent transferee in orderto bring it within the exception of that subsection.

MuktarHussain Khan vs Suresh Chandra Dey 42 DLR 86.

Section 27(b)—

A decree forspecific performance of contract cannot be enforced against a subsequenttransferee unless the title of the suit property passes to the subsequenttransferee.

Hamed AliChowdhury vs Nasir Mohammad Khan & others 47 DLR 570.

Section 28(a)—

Inadequacyof price—Mere inadequacy of price will not bring a case within the ambit ofthis sub—section. To attract this subsection, an 'inadequate' price must be anevidence of fraud or of undue advantage taken by the plaintiff.

Quazi DinMohammad vs Al—haj Arzan Ali and another 47 DLR (AD) 48.

Section 31—

Rectificationof the deedPrecise intention of the parties=—Court of equity will reform thewritten statement conformable to precise intention of the parties ifthe realintention is misrepresented by mutual mistake or fraud.

Lalbanu Bibivs Nourjan Banu 41DLR519.

Section 31—

Fourconditions for the rectification of the deed to be satisfied as contemplated insection 31 of the Act.

Lalbanu Bibivs Nourjan Banu 41 DLR 519.

Section 31—

Wrongframing of suit is no bar to the applicability of section 31 of the Act. Aggrievedparty may seek relief under the provision of relevant law because of the defeatof intention of parties caused by wrong framing of suit.

Further,framing of suit does not stand as a bar to the applicability of the provisionof section 31 of the Act. Here plaintiff—opposite party ignoring the provisionof section 31 of the Specific Relief Act. i.e. rectification of the impugneddeed, prayed for cancellation of the deed ·under consideration giving upearlier agreement reached with defendant petitioner No. l. Since intention ofthe parties was defeated because of wrong framing of the suit, the aggrievedparty is entitled to seek relief under the relevant provision of law.Therefore, the aforesaid decision is of no assistance to him.

Lalbanu Bibivs Nourjan Banu 41 DLR 519.

Section 39—

Prayers foran instrument's cancellation also is consequential relief, then the plaintiffwill have to pay for it—But cancellation of the instrument is not indispensablynecessary in all cases—A void document need not be cancelled—Where the documentis ex facie void its cancellation is not necessary even if the plaintiff isparty to it—Where under section 39 cancellation is found necessary the suitshould not be dismissed in the absence of such a prayer but the plaintiffshould be asked to pay additional court—fee.

Sujia Khanamvs Faizun Nessa 39 DLR (AD) 46.

Section 31—

A failure torectify a sale deed does not extinguish the title to the property which wasreally sold but not properly described in the sale deed due to mistake.

BinodeBihari Ghose vs Assistant Custodian, Vested and Non-Resident Property andothers 50 DLR 134.

Section 39—

In order toremove the impediment in the way of the plaintiffs to get complete relief alongwith the declaration the plaintiffs needed to make a prayer for cancellation ofthe document on payment of ad valorem court fee the High Court Division fellinto an error of law in setting aside the order of remand made by the appellateCourt and restoring the decree of the trial Court without giving any chance tothe appellate Court to give its decision on the merit of the case.

ChittaRanjan Chakraborty and others vs Md Abdur Rob alias Mvi Md Abdur Rob 49 DLR(AD) 96.

Section 35—

Sale ofland—Prayer for getting back consideration money on the plea of absence ofsellers' title when cannot be allowed—The facts of the case disclose that theplaintiff purchased the property with open eyes having opportunity to know ofthe title of the defendant and the plaintiff having obtained delivery of possessionwas still in possession in respect of the whole property. His apprehension that3l4 portion of the land will be taken over by the vested property authority istoo vague and remote to give rise to any cause of action for the suit asframed.

NarayanChandra Banerjee vs Salek Ali Shaik (Md) 44 DLR 202.

Sections 39 & 42—

Cancellationof instrument when need not be prayed—Where the plaintiff is not a party to theinstrument mere declaration that the instrument is void is sufficient and theplaintiff need not pray for cancellation of the instrument whether the suitfalls under section 42 or under section 39. The Court below having erred in lawin dismissing the suit on ground of maintainability, the suit is sent back tothe trial Court for fresh hearing in accordance with law.

SultanaBegum vs Abul Kalam 43 DLR 177.

Sections 39 & 42—

In a suitfor declaration that certain instrument is void where the Court finds that theinstrument is void ab initio, the suit is maintainable without asking for cancellationof the instrument. The contention that the suit is hit by the provision tosection 42 of the Act has no substance.

AHShamsuddin Ahmed vs Begum Arafat 43 DLR 52.

Section 35—

Rescissionof contract— The plaintiff in the suit for specific performance of contract aredeemed to have forsaken their right to have a deed of sale from defendantRajeshwar when they received his offer to take back from him the advancepurchase—money but made no response thereto. Even when Rajeshwar pays back theadvance purchase—money with compensation, the contract is not terminable at hisoption—the option lies with the plaintiffs, not with defendant.

RajeshwarHabibur Rahman vs Sree Jogiswar Roy 44 DLR (AD) 247.

Sections 39 and 42—

Theplaintiffre-spondents after having obtained a declaration as to the illegaland fraudulent character of the impugned kabala deed and also a declaration oftheir title to the suit land do not need any cancellation of the impugned deed,they not being parties to the impugned kabala deed.

Momtaz Begum& others vs Md Masud Khan 52 DLR (AD) 46.

Sections 39 & 42—

Theplaintiffs having impeached the decree in the earlier suit on ground ofcollusion and fraud on the assertion that they are owners in possession of thesuit land, they are not required to seek any 'further relief to their mainrelief of declaration.

Abdus Sukur(Md) and others vs Bhasani Mandal and another 53 DLR 452.

Specific Relief Act, 1877 [Section 42]

SpecificRelief Act [I of 1877]

Section 42—

Undersection 42 where consequential relief is found necessary, but has not beenasked for the suit may either be dismissed or the plaintiff directed to payadditional court—fee—For relief sought by way of cancellation of a document, akabala or a decree, section 39 is applicable—Declaration ofnullity of adocument is the main and substantive relief, whereas cancellation of theinstrument is a consequential relief.

Sufia Khanamvs Faizunessa 39 DLR (AD) 46.

Section 42—

A writteninstrument when is adjudged void, need not be cancelled—Plaintiff should alsoseek the additional relief by way of setting aside the decree or cancelling thedeedSuit for mere declaration that an instrument is void, maintainable withouta prayer for its cancellation—Relief by declaration of nullity of anyinstrument and also relief by cancellation of the instrument provided insection 39. Section 42 does not specifically provide for declaration of nullityof any written instrument; nevertheless a decree for nullity of an instrumentin view of the general provision therein comes under section 43.

Sufia Khanamvs Faizunessa 39 DLR (AD) 46.

Section 42—

If aperson's right and title is clouded by an instrument he may seek a declarationunder section 42 to nullify the effect of such an instrument—A suit fordeclaration that a deed whether a sale deed or decree is void comes undersection 39 of the SR Act in terms of this section—But when further prayer isadded that by the said deed plaintiffs right is not affected, this falls undersection 42—If his suit includes the reliefs that the instrument in question isvoid and his right has not been affected thereby and, or, the defendantacquired no right thereby, then the reliefs are covered by both sections 39 and42.

Sufia Khanamvs Faizunnessa 39 DLR (AD) 46.

Section 42—

Possessionhas been delivered through Court to the defendant and the plaintiffs havefailed to prove their possession therein and as such the present suit by theplaintiff for declaration without prayer for recovery of khas possession is notmaintainable.

FazlureRahman vs Bani Rahman 39 DLR 339.

Section 42—

The plaintiffscan file a properly constituted suit for declaration of title.

FazlurRahman vs Bani Rahman 39 DLR 339.

Section 42—

A suit fornegative declaration under section 42 of the SR Act is maintainable.

Nurul Apservs HR Chowdhury 40 DLR 226.

Section 42, Proviso—

Court'sdiscretion to make a declaration of any status or right upon a suit institutedunder section 42 of the Act—Positive bar to make a mere declaration of titleif the plaintiff being able to seek further relief omits to do so—Meaning of"being able to seek further relief."

TradingCorporation of Bangladesh vs Syed Sajeduzzaman 40 DLR 406.

Section 42, Proviso—

Thecontention that the second declaration that 'the plaintiff is in service of theCorporation as executive officer' is a consequential relief, is to be rejectedoutright as being not acceptable.

TradingCorporation of Bangladesh vs Syed Sajeduzzaman 40 DLR 406.

Section 42—

Absence ofconsequential relief by way of mandatory direction for re-instatement inservice—Declaration ineffective and infructuous.

TradingCorporation of Bangladesh vs Syed Sajeduzzaman 40 DLR 406.

Section 42—

A suit fordeclaration, even without a prayer for recovery of possession, that theCertificate proceeding is without jurisdiction, illegal and void ab initio, ismaintainable.

Amina Khatunvs Ansar Ali 40 DLR 419.

Section 42—

The questionarose whether the respondent was a worker under the relevant labour law or heis an employee of the Corporation governed by its Service Rules or whether hisremedy lay in a grievance petition under section 25 of the Act.

Leave wasgranted by us to consider the question whether the respondent is a worker underthe relevant Labour Law or whether he is an employee of the Corporation,governed by its Service Rules, and whether his suit was hit by section 42 ofthe Specific Relief Act in the absence of any prayer for consequential relief.

We haveheard lengthy arguments of the learned Advocates for both the parties—MrAsrarul Hossain for the appellants and Mr Mahmudul Islam for the respondent. MrAsrarul Hossain has contended that the order of the respondent's dismissalitself shows that he was treated as a worker of the Mills and was dismissed bythe "Employer" under section 17 of the Act and as such his only remedylay in a "grievance petition" before the Labour Court under section25 of the Act.

DostaTextile Mills vs SB Nath 40 DLR (AD) 45.

Section 42—

Respondentis a worker and he is not an employee of the corporation. Corporation ServiceRules are not applicable to him.

DostaTextile Mills vs SB Nath 40 DLR (AD) 45.

Section 42—

A suitwherein negative declaration is prayed for is not barred under section 42 ofthe Specific Relief Act.

Abdul Ganiand others vs Almas Khatun and others 42 DLR 211.

Section 42—

Maintainabilityof suitPlaintiffs having failed to prove their possession in the suit land, asimple suit for declaration of their title is barred.

NoorMohammad Khan vs Bangladesh 42 DLR 434.

Section 42—

Theplaintiff being entitled to a decree that the suit property is not an abandonedproperty and the Government having disclaimed the same as requisitionedproperty, the latter is liable to restore its possession to the plaintiff andalso to pay rentlcompensation under the Requisition of Property Act for its useand occupation from 14-2-72 till the possession of the property is restored tothe plaintiff.

Md Zaher vsBangladesh 42 DLR 430.

Section 42—

A suitwherein negative declaration is prayed for is not barred under section 42 ofthe Specific Relief Act (relied on 37 DLR 49, 40 DLR 226).

Abdul Ganivs Almas Khatun 42 DLR 211.

Section 42—

As theplaintiff—appellant does not have title to the entire suit land the greaterpart of which is in fact an enemy and vested property, he is not entitled to adecree for declaration as prayed for—He may seek remedy by way of partition inan appropriate forum.

It is notascertained what is the appellant's share nor is it clear whether the Il3rd ofthe suit land representing original owner Jugal Chand's share, has· beenmcluoed in the Vested Property case. Determination of the appellant's lawfulshare in the suit land is not an issue in this suit. It is .a suit fordeclaration that the Vested Property case is illegal, collusive and void.· Nowthat the appellant is not found to have title to the entire suit land thegreater part of which is in fact an enemy and vested property theappellant—plaintiff is not entitled to a decree he prayed for. He may seekremedy by way of partition in an appropriate forum. Decision of the High CourtDivision affirming that of the Appellant Court is perfectly correct.

NuruzzamanSarker vs Seraj Mia 41 DLR (AD) 107.

Section 42—

When prayerfor consequential relief not necessary—The plaintiffs did not file the suit fordeclaration of their title. They have prayed for simple declaration to theeffect that the judgment of the certificate proceeding bearing No. 697 and saleheld thereunder is illegal, collusive; fraudulent and is not binding upon theplaintiff. So the prayer for consequential relief is not required in theinstant case. As such the suit will not be hit by section 42 of the SpecificRelief Act.

In a casewhere the defendant's plea of his having taken symbolical possession or thatthere is evidence of 'the defendant having taken symbolical possession, theplaintiff must pay for recovery· of possession in a suit for declaration of histitle, otherwise the suit will be hit by section 42 of the Specific Relief Act.

MokbulHossain vs Anil Kumar Shaha 37 DLR 131.

Section 42—

Whilepassing a declaratory decree under section 42 of the Specific Relief Act thetrial Court will consider if the plaintiff can establish his locus standi tosue the · Vice Chancellor and whether the case involves any personalentitlement, any legal character or right to any property.

Prof MARaquib vs. Prof Zillur Rahman 37 DLR 83.

Section 42—

Whatexigency of circumstances prevailed which compelled an officer of theUniversity to institute a suit against the highest officer of the University withregard to an official act of the University has to be established before thetrial Court while disposing of the suit on merits by the court concerned.

Prof MARaqub vs ProfZillur Rahman 37 DLR 83.

Section 42—

Suit forinjunction incidentally the question of title is gone into that will notconvert the suit to one for declaration of title and injunction—Where defendantis in possession or the plaintiff has no legal possession suit for permanentinjunction will not lie.

BazlurRahman vs Jan Mohammad 37 DLR 79.

Section 42—

Negativedeclaration sought in a suit—that creates no bar under section 42 SR Act.

Merelybecause a negative declaration has been sought that cannot be any ground tohold that the suit does not come within the ambit of section 42 of the SpecificRelief Act. The said section does not really bar a negative declaration as suchif otherwise its conditions and terms are fulfilled.

BipinChandra Ray vs Bunchuki Barmani 37 DLR 49.

Section 42—

Adeclaration as to illegal and void character of an act would automatically meanthe restoration of the position previous of the illegal act.

Sarder AhmedAli vs GM Ali Baksh 37 DLR 7.

Section 42—

Relief whichcannot be called further reliefs within the meaning of the prP\ is ion tosection 42.

If aplaintiff would be entitled, in some remote way, to some other relief inconsequence of the declaration but which .are not immediately related to thecause of action the said relief cannot be called further relief within themeaning of the Proviso to the Act and hence the plaintiff in such a case cannotbe compelled by the court to ask for relief, whether he wants it or not and ifthe plaintiff in a given case is not in need of any other consequential reliefthe suit will not lie. All this would depend upon the facts and circumstancesof each case and this ought to be decided at the outset and allow an amendmentof the plaint if so required after an objective examination of the furtherrelief that need be claimed.

Sarder AhmedAli vs GM Ali Boksh 37 DLR 7.

Section 42—

Undersection 42, SR Act a case will lie when the plaintiff proves that he isentitled to a legal character or right and the defendant is denying such legalcharacter or right.

Hasmat Alivs Mofizuddin Majhi 37 DLR 231.

Section 42—

Suit fordeclaration that the order of removal of the plaintiff, a bank officer, fromservice was void and inoperative and that he remained in service wasmaintainable without any further relief.

Fazlul Karimvs Agrani Bank 45 DLR 375.

Section 42—

When adecree adversely affects a person not a party to the same he may file a suitfor declaring the decree not binding on him and get the same set aside if foundillegal.

Moulvi AbdulMannan vs Md Rajiqul Islam 46 DLR 493.

Section 42—

In a case oforiginal coownership the plaintiff and defendant being in joint possession ofthe suit property, suit for declaratory relief in respect of the share of theplaintiff in a specified land without seeking partition is maintainable.

ShankarChandra Das vs Kalachand Das 46 DLR 419.

Section 42—

As theplaintiffs failed to prove their possession in the suit land their simple suitfor declaration of title is barred and the suit as framed is not alsomaintainable.

Madaris Alivs Biswamber Das 46 DLR 34.

Section 42—

In a suitfor declaration of title to property when it stands attached under section 145CrPC it is unnecessary to ask for further relief of recovery of possession. Itis unnecessary to ask for possession when the property is in custodia legis.The fact that the decree may not be binding on the Magistrate does not affectthe competence of the suit.

JogendraKumar Dutta vs Nur Mohammad & others 45 DLR (AD) 173.

Section 42—

In the faceof evidence showing that the plaintiffs have been possessing the suit land from1351 BS and their names have been recorded in the Khatian and there being noevidence on record to prove that the Government ever took possession of theland as an enemy property, defendants' claim of title is sustainable.

AdditionalDeputy Commissioner (Revenue) ys Md Siddiqur Rahman 46 DLR (AD) 179.

Section 42—

Maintainabilityof suit—The suit being one for declaration of title to an unspecified share ofan undivided plot of land on the basis of gift and there being no evidence thatthe donor thereof was in exclusive possession at any time, is not maintainablewithout a prayer for partition.

Tayeb Ali vsAbdul Khaleque 43 DLR (AD) 87.

Section 42—

Suit fordeclaration simpliciter—When the suit property is in possession of theGovernment, no prayer for recovery of possession is required. If it is declaredby the Court that the property is not an abandoned property, the Governmentwill have no reason to possess the same and will be under an obligation torestore possession to the plaintiff and no prayer for recovery of possession asa consequential relief is necessary. The lessor under the Government has noindependent right and no prayer for her eviction is necessary.

Hashem vsBangladesh and others 43 DLR I 09.

Section 42—

Plaintift'sprayer for declaration that defendant Nos. 2 and 3 have no title· in the suitproperty in the suit for specific performance of contract by the purchaser wasnot maintainable since the plaintiff acquired no interest in the suit propertyunder the contract for sale.

SilverEstate Ltd vs Abdul Hakim Mia 43 DLR 360.

Section 42—

Adeclaratory decree passed in a case without any prayer for consequential reliefis an "annuity". Such decree· is a gain and its implementation isdependent on as to whom the decree is passed against. In the instant case thedefendant being a statutory corporation, there is no reason to believe thatsuch corporation will not implement the decision of the court.

Jiban BimaCorporation, Dhaka vs Mustafa Hussain & and another 50 DLR 411.

Section 42—

Servicematter—Suit for declaration is not maintainable in view of the fact that tillnow the relationship between the parties is that of master and servant—Thoughthe corporation had taken over the jute mill no statutory rules have beenframed in order to guide the service conditions of the plaintiff and employeeslike him.

BangladeshJute Mills Corporation Ltd and others vs Abdul Halim Chowdhury 47 DLR 17 3.

Section 42—

Plaintift'sprayer for declaration was not followed by any consequential relief and, assuch, the Court committed no illegality in holding that the omission to prayfor such a relief for the purpose of enforcing the declaratory decree 'was hitby section 42 of the Act.

BangladeshJute Mills Corporation Ltd and others vs Abdul Halim Chowdhury 47 DLR 173.

Section 42—

A suit atthe instance of a co-sharer against a trespasser for recovery of possession ismaintainable without impleading the other co-sharers.

AbdulKhaleque (Md) vs Raj Mohammad Sarker and others 47 DLR 524.

Section 42—

Suit forcancellation of decree—in such a suit it is incumbent to show that the decreewas obtained by practicing fraud upon the Court.

Jinnatunessavs Bangladesh, represented by the Deputy Commissioner, Mymensingh 48 DLR 208.

Section 42—

Omission topray for any consequential relief for the purpose of enforcing a declaratorydecree would be hit by the provision to section 42 of the Specific Relief Act.

Sonali Bankand another vs Chandon Kumar Nandi 48 DLR 330.

Section 42—

The courtsbelow having held that the plaintiffs, had failed to prove their title andpossession it must be held that they were not entitled to a decree for a simpledeclaration that the sole decree in the entitled Suit was obtained fraudulentlyand not binding on them.

Ishaque Mia,(Md) & another vs Abdul Mazid Mollah & others 48 DLR 465.

Section 42 (Proviso)—

In servicematter a suit for simple declaration without any prayer for consequentialrelief is not maintainable.

DhunatDegree College and others vs Md Abdus Samad and others 49 DLR 38.

Section 42—

Thedefendants being in possession of the suitland from before the filing of thesuit, the plaintiff was to pray for recovery of khas possession by way ofconsequential relief as a suit for mere declaration is liable to be dismissed.

Abdul HamidMollah vs Md Abdul Hye and others 49 DLR 428.

Section 42—

Although anoral agreement for sale of an immoveable property is not barred by law, it hasto be looked at with some suspicion unless it is proved by reliabe evidence.

Moslemuddin(Md) and others vs Md Jonah Ali and another 50 DLR (AD) 13.

Section 42—

Plaintiffscould have asked for either joint possession or partition as .a .co-sharer ofthe defendants in the disputed land but they did not take any such stand in thelower appellate Court or even before the High Court Division, The impugnedjudgment calls for no interference.

EnjaheruddinMia vs Mohammad Hossain and others 50 DLR (AD) 84.

Section 42—

When theplaintiffs are in possession claiming raiyati settlement they cannot set upadverse possession to be entitled to a declaration of title.

Salma Khatunand others vs Zilla Parishad Chittagong, represented by its Secretary andanother 51 DLR (AD) 257.

Section 42—

In a suitfor declaration of title mere possession of the property is not sufficientunless the plaintiff can produce a document of title showing his acquisition ofright, title and interest in the suit property.

Abdul Kadervs Abdullah and others 51 DLR 435.

Section 42—

Mereinclusion of the name of the plaintiff in the list recommended by selectioncommittee for appointment could not confer any right to appointment to theservice of the government.

HabiburRahman (Md) vs DC, Patuakhali and others 51 DLR 70.

Section 42—

Since theplaintiff has no possession in the suit land, the suit for declaration of titleon the basis of adverse possession is not maintainable.

Kala Miah vsGopal Chandra Paul and others 51 DLR 77.

Section 42—

"Theexpression "legal character" in section 42 of the Act denotes apersonal and special right not arising out of contract or tort, but of legalrecognition. Rejection of plaintiffs application for allotment has created alegal recognition enforceable against a person whose similar application isaccepted.

Mirpur MazarCo-operative Market Society Ltd vs Ministry of Works Government of People’sRepublic of Bangladesh and others 52 DLR 263.

Section 42—

In a casewhere plaintiff is a party to a document or decree that has clouded his titleto the property in suit, he is to seek declaration either way, i.e., that thedocument or decree is void or void ab-initio or that for declaration as well asfor cancellation.

Dudu Mia andothers vs Ekram Miah Chowdhury 54 DLR (AD) 7.

Section 42—

The HighCourt Division was not correct, rather was in error in observing that decreesare collusive and consequently those need not be set aside.

Dudu Mia andothers vs Ekram Miah Chowdhury and others 54 DLR (AD) 7.

Section 42—

In a suitfor permanent injunction trial Court is not required to decide the title ofrespective parties.

ChiefEngineer, C&B and another vs Shah Hingul Mazar Sharif and others 54DLR (AD)73.

Section 42—

Adeclaration with regard to the contractual or financial obligation involved ortransacted between the parties cannot come within the ambit Of section 42 ofthe Specific Relief Act.

Shafi AChoudhury vs Pubali Bank Ltd 54 DLR 310.

Section 42—

Althoughsection 42 of the Specific Relief Act is not exhaustive and declarationindependent of that provision is even permissible but a suit for declaration,would not lie when the plaintiff is neither entitled to any legal character orstatus nor clothed with any right.

Shafi AChoudhury vs Pubali Bank Ltd 54 DLR 310.

Section 42—

Since therewas a letter of allotment and Alimuddin performed his obligations under theletter of allotment, and subsequently his heirs are in possession of the suitproperty, it cannot be said that late Alimuddin did not acquire any right titlein the suit property.

MoinuddinAhmed alias Farook vs Khursheda Begum and ors 54 DLR 354.

Section 42—

Theparticular fact that the plaintiffs are in possession of the suit land since1963 by virtue of the registered power of attorney the plaintiffs have acquireda right to protect their possession and maintain a suit within the meaning ofsection 42 of the Specific Relief Act.

ShishirKanti Pal and others vs Nur Muhammad and others 54 DLR 440.

Section 42—

Suit fordeclaration simpliciter m service matter is maintainable without any prayer forconsequential relief.

Tomser Ali@Md Tamser Ali Sarder vs Md Nazrul Islam and others 55 DLR 151.

Section 42—

A legalaction involves determination of rights and obligations of the parties thereto.In law only a juristic person, whether natural· or artificial, is capable ofhaving a right and an obligation. It, therefore; follows that only a juristicperson can maintain a suit in a court of law. Bangladesh is a juristic personby being a Sovereign State.

Principal,Barguna Darul Ulum Nesaria Alia Madrasha vs Secretary, Ministry of Health &ors 55 DLR 542.

Section 42—

Law has notconferred upon a Ministry or a Department of the Government a legalpersonality, independent of the .Government. In a suit where the name of aMinistry appears as a party, it does so as the representative of the Governmentor the.

State,Principal, Barguna Darul Ulum Nesaria Alia Madrasha vs Secretary, Ministry ofHealth & ors 55 DLR 542.

Section 42—

The Ministryof Health has no legal personality, independent of the Government. So, itcannot maintain a suit in its· name; without an authority from the Government.It may derive its authority to proceed with a legal action from the Government.So, when the Ministry has no authority of its own to proceed with a legalaction, it cannot authorise others to represent it in, and proceed with, alegal action.

Principal,Barguna Darul Ulum Nesaria Alia Madrasha vs Secretary. Ministry of Health &ors 55 DLR 542.

Section 42—

Suspensionof· an employee pending a disciplinary proceeding· is an approved measure andthe Court does not generally interfere with it. But if the order of suspensionis prima facie illegal and tinged with malafidie, the Court is competent to actfor preventing injustice.

Bijoy KumarShaha vs DC, Chuadanga and others 55 DLR 550.

Section 42—

Although inresponse to the public notice the plaintiff submitted two tenders and alsodeposited the required 25% deposits but since those tenders were· not acceptedby the Railway Department, no agreement came into existence and they had noobligation, legal or otherwise, to allot any plot of land in favour of theplaintiff.

Governmentof the People's Republic of Bangladesh and others vs Sheikh Jahangir Hossain 55DLR 620.

Section 42—

Respondentwas appointed a temporary junior teacher and her probation was for two yearsand she was allowed to continue in service for two and a half years. Relyingupon the decision reported in 29 DLR 104, it is ruled that her continuation inthe service beyond two years would amount to her confirmation in the service.

KadamtalaPurba Basaboo Uchcha Bidalaya vs Hachna Hena Sarker Hasna Heba Sarker 56 DLR(AD) 193.

Section 42—

Neither theGovernment nor the Vested Property Authority challenged the decree of the trialCourt. The defendant Nos. 6-8, being lessees of the Vested Property for oneyear, cannot have any locus standi to challenge the decree or prefer an appealagainst such decree.

Aroti RaniPaul vs Sudarshan Kumar Paul and others 56 DLR (AD) 73.

Section 42 and 39—

Section 42does not provide for declaration of nullity and cancellation of a writteninstrument but section 39 does so. 'Voidable', it will have to be avoided bothby declaration and cancellation; and if the document is adjudged void or voidab initio it need not be cancelled—Sale deed void because of fraud, need not becancelled.

Sufia Khanamvs Faizunnessa 39 DLR (AD) 46.

Sections 42 and 56(7)—

Courtscannot compel a. person, against his will, to employ or serve another,notwithstanding the contract of service. A mandatory injunction cannot begranted for such purposes.

Padma Oil CoLtd vs SM Nurul Islam and ors 56 DLR 505.

Specific Relief Act, 1877 [Section 43 - 56]

SpecificRelief Act [I of 1877]

Section 53—

A temporaryinjunction under section 53 of the Specific Relief Act may be granted when thecircumstances satisfy the provisions of Order XXXIX, rules 1 and 2 of CPC.

Prof MARaquib vs Prof Zillur Rahman 37 DLR 83.

Section 53—

Contract—Time-limitmade the essence of contract—Responsibility of which party is carrying out thecontract in time.

When time ismade the essence of the contract under which parties thereto agree mutually toundertake certain obligations, it would be necessary to find whose failure tocarry out his obligations within the time mentioned in the contract the samecould not be performed.

It isnecessary to find whose unwillingness to perform his part of the obligationunder the contract eventually led to the non-performance of the contract. In asuit for specific performance of the contract which makes time the essence ofthe contract, the plaintiff must succeed if his readiness and willingness toperform the obligations undertaken by him are proved.

Ram ChandraDas vs Md Khalilur Rahman 37 DLR (AD) 21.

Section 53—

Time gapbetween the date of execution of sale deed and the date of decree being verywide the defaulting party ordered to pay additional sum besides theconsideration amount—Contract once entered into must be fulfilled.

Ram ChandraDas vs Md Khalilur Rahman 37 DLR (AD) 21.

Section 53—

Permanentinjunction when not sustainable—the plaintiffs being mere lessees under theGovernment in respect of the enemy property from year to year cannot obtain adecree for permanent injunction.

Rashid Ahmedvs Abdul Nabi Sawdagar 45 DLR 29.

Section 54—

Claim oflegal obligation in support of injunction—The legal right as claimed by theplaintiff under the cover of registration of their trade union is similarlybeing enjoyed by the defendants under cover of valid registration of theirtrade union. It cannot therefore be said either trade union is under anyobligation to be restrained by any order of injunction.

Badsha Miahvs Tofael Ahmed Chowdhury 42 DLR 504.

Sections 53 & 54—

PermanentinjunctionIts scope in a dispute over landed property—In a simple suit forpermanent injunction with regard to a disputed landed property the relief isavailable to a person who is in possession. The Court may enquire incidentallyinto the respective claims of the parties to the suit for determining whetherthe plaintiff is in possession of the disputed property and entitled to thespecific relief of permanent injunction.

RafizuddinAhmed vs Mongla Barman 43 DLR (AD) 215.

Section 54—

Suit forinjunction in respect of land—Plaintiff in possession of the suit land—Suit forinjunction simpliciter in such case would lie.

BazlurRahman vs Jan Mohammad 37 DLR 79.

Section 54—

Suit forpermanent injunction, maintainability of—The paramount consideration in a suitfor permanent injunction is whether the plaintiff has been successful inproving his exclusive possession. Question of title may be looked intoincidentally but decision on title in such a suit is not a guiding principlefor holding that the suit is not maintainable without a partition suit.

Sheikh Ahmedvs Abdul Alim 42 DLR 408.

Section 54—

Theplaintiffs being in exclusive possession of the suitland are entitled to therelief prayed for a decree of permanent injunction. But such a decree shall notbe treated as ouster of the defendants as co—sharers from the suit land for thepurpose of a suit for partition.

Kalipada DeySarker vs Hem Chandra Dey Sarker 44 DLR 419.

Section 54—

Illegalpossession in whatever manner it has been obtained if not found legalisedotherwise such as by adverse possession or by subsequently acquiring title, itcannot be protected.

Abdul Karimvs Bangladesh 51 DLR 447.

Section 54—

In a suitfor permanent injunction the Court need not enter into disputed title except tothe extent that it would help the Court in finding which of the parties haveprima facie title and exclusive possession.

JobayerHossain and ors vs Noor Hafez and another 56 DLR (AD) 22.

Sections 54, 56(K)—

No permanentinjunction can be granted unless the applicant had any personal interest in thematter and when there is no breach of any obligation existing in his favour.

Prof MARaquib vs Prof Zillur Rahman 37 DLR 83.

Section 55—

Where theuse of property is permissive and not as of right no case is made out forinjunction far less a question of mandatory injunction—The obligation referredto in this section means a legal obligation and not a moral obligation.

Aftabuddinvs Mahfuzus Sobhan 42 DLR (AD) 78.

Section 55—

Sincespecific order of mandatory injunction was issued upon local officers forgiving the petitioner immediate telephone connection, they are bound to obeythe orders of the Court. For non-service of notices upon the Chairman and theDirector of the T&T Board the order of mandatory injunction passed by theSubordinate Judge cannot be frustrated.

Akter MahalHasna Banu vs Chairman T & T Board 46 DLR 452.

Section 55—

Instance ofgranting ad interim mandatory injunction without hearing the other side pendingdecision on the application itself are almost uncommon.

Bengal WaterWorks vs IWTA 46 DLR 179.

Section 55—

TempoaryMandatory Injunction—Possession claimed even on the basis of imperfectdocument can be restored to the plaintiff dispossessed without notice—Theplaintiff was in possession on the basis of some documents however imperfectthat document might be and he could certainly have his possession protected undersection 53A of the Act or under provision of the Specific Relief Act and ifdispossessed he could be put back to possession.

BangladeshMukti Judda Kallyan Trust vs Nurul Hossain 44 DLR 22.

Section 55—

Apartyaltering the status quo existing at the time of filing of the suit orproceeding must be compelled. to restore the status quo ante.

Abul HayatSunu vs MA Reja 47 DLR 170.

Section 55—

When itappears to the court that a party to a pending proceeding acts in an imperiousmanner and adversely affects the majesty of the court, a duty is cast upon itto take the delinquent to task by restoring at least status quo ante in.respect of the subject-matter in dispute. Anwara Begum and others vs.

ShamsunNahar Begum and others 49 DLR 364.

Section 55—

The Courtmay, in an appropriate case, in exercise of its inherent power, require theoffending party to restore the status quo ante by issuing a temporaryinjunction in mandatory form.

Rafiqul Alamvs. Secretary, Ministry of Works, Government of the People's Republic ofBangladesh and others 49DLR 456.

Section 55—

Mandatoryinjunction is a highly discretionary relief granted in favour of the aggrievedparty only when. it is proved that the offending party has committed an illegalact in relation to the subject—matter of the suit in violation of a legal rightof a party in the suit.

Ramizuddinalias Kalu Mia Mistri and others vs. Kazi Tajul Islam and others 49 DLR 612.

Section 55—

An order ofmandatory injunction cannot be sustained if the subject matter of the disputeis not sufficiently specified. In cases of injunctions the Court must always bevery cautious in specifying the property so that on account of vaguenessdisputes do not erupt.

Fazlul KarimChowdhury (Md) and others vs Lutfunnessa Begum and others 50 DLR (AD) 188.

Section 55—

The Court ofappeal below granted mandatory injunction for restoration of connection withoutany security against huge arrears, and without any terms whatsoever. Such orderhas rendered the terms of the · contract practically suspended.

Titas Gas vsImmense Washing Plant and others 53 DLR 471.

Section 55—

In the factsof the instant case, the status quo of the plaintiff as to its status as aconsumer of gas for industrial purpose goes back to 19-4-77, and it was continuingto enjoy the said status till the gas was disconnected. The proper remedy formandatory injunction in terms of section55 of the Specific Relief Act seems tobe attracted.

BengalCeramic Industries Ltd vs Chairman, Petro Bangla & others 53 DLR 516.

Section 55—

Injunctionsare a form of equitable relief and they have to be adjusted in aid of equityand justice to the facts of each particular case.

BengalCeramic Industries Ltd vs Chairman, Petro Bangla & others 53 DLR 516.

Section 55—

The Courthad no jurisdiction to go beyond the terms of contract, but then in the factsof the case, there should have been equitable reliefs so that neither partyshall suffer owing to the interlocutory order.

Titas GasTransmission and Distribution Company Ltd vs Habib Oil Mills (BD) Ltd 54 DLR35.

Section 55—

A partyaltering the status quo existing at the time of filing of the suit orproceeding must be compelled to restore the status quo.

Muslim (Md)vs Abdul Motaleb and others 54 DLR 196.

Section 55—

There is nolaw empowering a court to grant mandatory injunction for payment of any portionof the amount claimed in a suit for a money decree for work done.

MR TradingCo vs Superintendent Engineer and others 56 DLR 470.

Section 55—

An order ofmandatory injunction or mandatory ad interim injunction is an extremely harshand highly discretionary order passed at the discretion of the Court to restorea situation existing on the date of filing of the suit or occurred after filingof the suit and in breach of any order of the Court. Such order cannot bepassed to restore or bring back a situation which was not in existence on thedate of filing of the suit.

Nurul Islamand ors vs Khatibuddin Ahmed and ors 56 DLR 545.

Section 56—

PermanentInjunction from judgments pronounced by the trial Court and the appellate Courtshow that these Courts did not record any finding that the plaintiffs are inexclusive possession of a specific and separate share of the suit plot welldemarcated by boundaries so as to entitle the plaintiffs to retain theirpossession against their co—sharers till partition by metes and bounds.

Abdus SamadAkand and others vs Abdul Halim Miji and others 50 DLR (AD) 6.

Section 56—

Thepetitioners having proved their exclusive possession in the suit land decree ofperpetual injunction in their favour without a prayer for declaration of titleis valid in law.

Abdul KaderMondal and others vs. Akbor Mondal and others 47 DLR 237.

Section 56—

In a suitfor perpetual injunction the plaintiffs shall have to prove the exclusivepossession in the land in order to get a decree. The court may incidentallyenquire into the prima facie title of the parties.

Mati LalKarmakar and another vs Kalandar Talukder and another 52 DLR 390.

Section 56—

Granting orrefusing injunction is an equitable relief. It should be used in aid of equityand fair justice. It is well settled that one who comes for equitable reliefmust come with clean hands. Here the plaintiffs came with unclean and dirtyhands and, as such, they are not entitled to any equitable relief.

KhaledaRahman & another vs Integrated Services Ltd 53 DLR 161.

Section 56—

Plaintiffsbeing co-sharers cannot be graced with a decree of permanent injunctionrestraining co—sharers defendants from enjoyment of the joint property.

GadalChandra Burman and others vs Khagendra Barman and others 53 DLR 405.

Section 56(d)(f)—

Aninjunction cannot be granted to interfere with the public duties of anydepartment of the Government.

JamalpurFishermen's Co-operative Society Ltd vs Deputy, Commissioner, Kishoreganj 47DLR 573.

Section 56(e)—

Possessionof suit land having been found under defendants after conclusion of proceedingsunder section 145 CrPC then restraining the receiver from handing over thepossession to them will amount to annulling the result of the criminalproceeding and this is not permitted under the law.

Janab Ali& others vs Ariu Miah & others 45 DLR 656.

Section 56(e)—

A civilCourt cannot stay a criminal prosecution by preventing the proceedings fromcontinuing by an injunction.

JobedaKhatun vs Mamtaz Begum 45 DLR (AD) 31.

Stamp Act, 1899

Stamp Act[II of 1899]

Sections 2(2), 18 & 35—

Stampinginstruments executed outside Bangladesh—When the SCC Judge examined the powerof attorney ordered refiling on validation it will be deemed to have cured thedefect of absence of Bangladesh stamps on the power of attorney and also thebreach of time limit for stamp. The holder of the power of attorney must paythe prescribed penalty otherwise the power of attorney will be inadmissible inevidence.

Anath BandhuGuha & Sons Ltd vs Babu SS Halder 42 DLR (AD) 244.

Section 2(11) & 12—

Ahsan KarimJinnah vs Meghna Insurance Company Limited & others 52 DLR 160.

Section 2(17)—

Definitionof mortgage deed occurring in section 2(17) of Stamp Act, 1899.

BHBFC vs AMannan 41 DLR (AD) 143.

Section 18—

The power ofattorney has not been authenticated or re-validated in this country.

MahajakShipping Co Ltd vs MV Sagar 39 DLR 425.

Section 18—

It providesfor stamping an instrument chargeable with duty and executed outside Bangladeshwithin three months after it has been first received. A document presentedafter 3 months of its receipt in Bangladesh will be impounded after duty andpenalty have been paid as required by the Stamp Act.

JoynalAbedin (Md) vs Gurupada Chakraborty 56 DLR 230.

Section 36—

Once adocument has been marked as an exhibit in the case and has been used by theparties in examination and cross-examination of their witnesses, Section 36comes into operation. There is no substance in the contention that the appealmust be allowed as the decree was allegedly exhibited illegally having not beenadmissible in evidence.

Sagir Ahmedvs Delwar Hossain 40 DLR 466.

Section 36—

Provision ofsection 36, Stamp Act mandatory—Once a document properly admitted under OrderXIII, rule 4 of the Civil Procedure Code—Its admissibility cannot be questionedin any Court at any stage of the same suit on ground of insufficiency of stamp.

Daulat Ltd.vs Pubali Bank 39 DLR 243.

Section 36—

Whetherthere is any absolute bar to the admissibility of a document though not dulystamped in view of section 36 of Stamp Act. In view of the position of law,Ext. 4, the foreign private document being not duly stamped ought to have beenimpounded and the same could be used in evidence only after being duly stampedwith cancellation thereof according to the provisions of law. Therefore, I holdthat both the Courts below committed error of law in dealing with the saidforeign document Ext.4 while deciding the question of prima facie title in thesuit property.

Bimal KantiBiswas vs Custodian of Enemy Property 42 DLR 227.

Section 36—

If adocument is admitted without objection, the admissibility cannot be questionedat any stage of the proceeding on the ground that the document has not beenduly stamped.

Abdul Kaderand another vs Abdul Aziz and others 47 DLR 67.

Section 45—

Compromisedecree, effectiveness of—After the passing of final decree on compromise (in apartition suit) the only thing that remains to be done is to engross it onstamped paper. Any of the parties may do it so as to render the decree legallyeffective.

Tajjaternessavs Suruj Mia 45 DLR 28.

Article 49, Schedule 1—

Anunconditional promise in writing and signed by the party to pay on demand atime—barred debt though not a fresh transaction comes under Article 49 ofSchedule 1 of the Stamp Act and hence will require requisite stamp.

Daulat Ltd.vs Pubali Bank 39 DLR 243.

State Acquisition & Tenancy Rules, 1955

StateAcquisition & Tenancy Rules, 1955

Revenue officers—

His functionis not judicial function—but he is concerned with mutation of names—Do reportfrom the Tahsilder, Revenue Officer incorporates necessary changes in record-of-right.If necessary he can make enquiry into correctness of what is reported to him.If necessary he may take evidence, but thereby he does not become a Court.

Idrish Alivs State 38 DLR 270.

Rules 22-24—

Chapter IVof the Tenancy Rule 1955 consists of rules 22-25 of which rules 22-24 relate tomutation proceeding.

Idrish Alivs State 38 DLR 270.

Rules 23 and 24—

RevenueOfficer, whether he constitutes a Court—His inquiry report lacks finality andauthoritativeness of a court as the Revenue officers do not possess the powerto decide the title to and the property rights in the immovable property.

Abul Hossain(Md) vs State 55 DLR (AD) 125.

Rules 36, 38, 39, 42 & 44—

DirectorGeneral of Land Records exceeded his power in entertaining and disposing of thesecond review petition reviewing orders passed by the Settlement Officer inappellate jurisdiction in respect of correction of record of rights.

MustafaKamal and others vs Director of Land Records 45 DLR 634.

Duties of Revenue Officers enumerated

23. Dutiesof Revenue Officers: (1) The Revenue Officer shall, if he is vested withnecessary , powers in this behalf under the Act, incorporate, and if he is notvested with such powers, send up proposals to the officer vested with suchpowers for incorporating necessary changes in the record of rights—

(a) Whenmutation of names is allowed as a result of inheritance either on the report ofthe Tahsildar under rule 22 or on the application of the heirs or otherwise;

(b) Whenmutation of names is made as a result of transfer on receipt of the notice oftransfer under section 89 of the Act;

…………………………………………

(2) Beforesending any report under this rule the Revenue Officer shall satisfy himselfabout its correctness and for this purpose he may make such enquiries and takesuch evidence as he thinks fit. (16)

24. Dutiesof officers entrusted with the work of maintaining the record of rights : (1)Subject to the provision of sub-rule (2), the officer entrusted with the workof maintaining the record of rights shall promptly incorporate therein allchanges reported to him under rule 23.

(2) Beforeincorporating any change in the record of rights, the officer shall carefullyexamine the report on the basis of which the change is to be made and shallsatisfy himself about its correctness and for that purpose he shall follow suchaction as may be directed by the Board of Revenue.

Idrish Alivs State 38 DLR 270.

State Acquisition and Tenancy Act, 1950 [Section 1 - 95]

StateAcquisition and Tenancy Act, 1950 [XXVIII of 1951]

Section 2A

Interest ofany 'local authority' is exempt from acquisition under the SAT Act. TheMunicipality is a local authority.

NarendarNath vs Municipal Committee 39 DLR (AD) 16.

Sections 2(12) & 20(2a)—

"Hat"or "Bazar" definition of—A hat or bazar sitting once in a week is notuncommon in this country. If a hat sits once a week regularly then it will comeunder mischief of the SAT Act. The expression "particular days" inthe definition of 'hat or bazar' if read together with necessary emphasis thatthe word 'particular' deserves, then it will be clear that the word 'days' willalso include a day as well in view of the provision of the General Clauses Actand the history of relevant legislation.

Bangladeshvs Shakhipur lslamia High School 45 DLR (AD) 23.

Sections 2(13)—

Choice ofsome holdings for pre-emption out of several holdings sold, whether it will bea case of partial pre-emption—The effect and purport of section 96(1) of theSAT Act is not that the right of pre-emption accrues only holding—wise but alsotransaction—wise. The clear intention of the Legislature was to confer a rightof pre— emption holding—wise and not transaction wise. In the context of section2(13) of the SAT Act read with section 96(1), the right of preemption has notbeen conferred with reference to the number of properties transferred by aparticular deed. A distinct right has been conferred in respect of a distinctholding.

BirendraNath Chakraborty vs Subal Chandra Biswas 43 DLR 276.

Sections 2(13) & 96(1)—

Thepre-emptor being a co-sharer and the purchaser being a stranger, case—landbeing part of a compact land, although there is no khatian number or plotnumber of the transferred land, it constitutes a part of an agricultureholding, so pre-emption is to be allowed.

Abdul Jabberand others vs Mohammad Sekander and others 51 DLR 62.

Section 3—

If there isno service for acquisition under section 3 the presumption is, there has beenno acquisition under the State Acquisition & Tenancy Act.

NarendarNath vs Municipal Committee 39 DLR (AD) 16.

Section 3(4)(e)—

After theabolition of all rent receiving interests in the country there is only oneclass of tenancy under the Government whose rights and liabilities are governedby a uniform law.

Governmentof Bangladesh vs Abani Kanta Chakrobory 38 DLR (AD) 93.

Section 9—

FourthAmendment of the section in 1951 provided that the amendment made shall haveretrospective effect with effect from the very beginning.

ShafiqurRahman vs Idris Ali 37 DLR (AD) 71.

Section 9—

Theappellants need not have joined the pre—emptor respondent because to join inthe application for pre-emption filed by contiguous land—holder isunnecessary—Section 26F of Bengal Tenancy Act limited pre-emption to co—sharersonly, either by purchase or by inheritance; it did not extend the right of preemptionto a tenant having land contiguous to the land transferred.

ShafiqurRahman vs Idris Ali 37 DLR (AD) 71.

Section 19(1)—

High CourtDivision's failure to appreciate the approach and findings of the lowerappellate Court. A large part of the judgment is devoted to defendant'sweakness in the case including rejection of objection under section 19(1) ofState Acquisition and Tenancy Act which was wholly unnecessary as it did notprove or strengthen the plaintiffs case.

The learnedJudge found fault with the subordinate judge for not considering the weaknessof the defendant's case and particularly the rent—receipts produced by him andthus considered himself justified to interfere in second appeal. It must besaid that the learned Judge made a fundamental mistake in ignoring altogetherthat the defendant's case was disbelieved by the lower appellate Court but eventhen the plaintiff was held not to be entitled to a decree as he could notestablish his own case.

Naim-uddinSardar vs Md Abdul Kalam 39 DLR (AD)237.

Sections 19(1), 22 & S—

Leave wasgranted to consider whether, in view of the provision of section 22 of theState Acquisition and Tenancy Act, 1950 the learned judges of the High CourtDivision were wrong in holding that the lands in question were not liable toassessment of rent.

In view ofthe provisions of section 22 of the Act all lands are subject to assessment andpayment of rent.

Bangladeshvs Zeenat Taxile Mills 40 DLR (AD) 189.

Section 2—

Land in theperiphery cannot be deemed to be 'in the hat or bazaar' within the meaning ofsection 20 of the State Acquisition and Tenancy Act, 1950.. Such land wastherefore never intended by the legislature to vest in the Government.

Hasna Banuvs Bangladesh and others 56 DLR 344

Sections 20, 43 & 44—

The processof acquisition becomes final only after publication of the notification in theofficial Gazette declaring that the compensation assessment roll has beenfinally published. The property vests in the Government only after suchnotification is published. The present case does not come within the mischiefof President's Order 90l72 since the plaintiff seems to be in possession of theproperty and there is absence of the required notification.

KhorshedAhmed Chowdhury vs Bangladesh 43 DLR 264.

Section 20(1)—

There is noscope for retaining possession of non—retainable khas land by any tenant now inBangladesh on any ground whatsoever.

Ali Akbar(Md) vs Bangladesh, represented by the Scretary, Ministry of Land and others 48DLR 544.

Section 22—

In view ofthe express provisions of section 22 even the Government cannot, by an order oragreement, exempt any land from assessment of rent, for the words used in thesection are mandatory, namely, "all lands shall be subject to the paymentof fair and equitable rents.

Bangladeshvs Zeenat Taxtitle Mills 40 DLR (AD) 189.

Sections 43(2) & 44(3)—

Publicationof a notification in the official Gazette declaring that a compensationassessment-roll has been finally published for a village specifying in suchnotification the date of the final publication of the compensationassessment-roll is a conclusive proof of such publication and of the datethereof. After the said notification all interests of tenants in respect oftheir non-retainable property would vest in the Government with effect from thefirst day of the agricultural year next following the date of publication. Evenif there be any defect in the preparation and publication of the compensationassessment-roll that by itself shall not stand in the way of the vesting.

Ali Akbar(Md) vs Government of Bangladesh 50 DLR (AD) 143.

Sections 54 & 116—

Abdul Mainvs Bangladesh represented by the Secretary, Ministry of Land, & ors 53 DLR506.

Section 59(a)—

Saleaccompanied by separate agreement to reconvey is a complete usufructuarymortgage.

Zafar Ali(Md) vs Md Momtaz Hasan and others 49 DLR 319.

Section 72—

In mattersof interlocutory injunction, the Court normally should not enter into the meritof the suit and decide whether a suit is maintainable or not.

MollaMahjenul Islam vs State and ors 53 DLR 552.

Section 76—

Undersection 76 of the State Acquisition and Tenancy Act, 1950 the Government hasthe sole right to leave the suit properties in any manner it likes—Section 108of the Transfer of Property Act (IV of 1882) covers the present case definingthe rights and liabilities of the lessor and the lessee—As the respondent couldnot fish for the period of lease for circumstances beyond his control he couldrepudiate the lease as void and sue the appellant Government for rent money orcompensation.

Bangladeshvs Haji Mozaffaruddin 40 DLR 283.

Section 76—

In respectof fisheries which are governed by section 76 of the State Acquisition andTenancy Act, in the absence of rules framed thereof the Government must followsome standards or guidelines, and must not act arbitrarily.

SMS Samityvs Bangladesh 39 DLR (AD) 85.

Section 82—

As theappellant was a government servant and not a bonafide cultivator, he was notentitled to get khas mahal land.

Abdul Khaleqvs Bangladesh 40 DLR 21.

Section 86—

In the landswhich were in diluvion prior to 13th July, 1994 the right of the originaltenant or his successors would continue if the lands re-appear in situ within30 years. The Government can only claim such of these lands in diluvion whichhad re-appeared prior to 13th July under the PO No. 135 but cannot claim suchright in respect of lands which are still in diluvion.

KajemuddinMiah (Md) vs Bangladesh and others 52 DLR 240.

Sections 86 & 87—

Accredon orreformation in situ—The provisions of law as to accreted land or reformed landas they stand now can have effect only with respect to land accreted or reappearedafter Part V of the State Acquisition & Tenancy Act, 1950 came into forcein the locality in question on August 29, 1963. The disputed land appearedabove the river water as hard soil due to recession of the river in the laterpart of the forties or in the early part of the fifties and attached by theCollector in 1955. In these circumstances the amended provisions of sections 86& 87 can in no way be applicable in the present case.

PadmabatiBiswas vs Bangladesh 44 DLR 465.

Section 86(1)(2)(3)—

Section86(1)(2)(3) as amended by State Acquisition and Tenancy (Fourth Amendment)Order, 1972. (President's Order No. 135 of 1972) dated 4-11-1972.

Seconddiluvion of the suit land took place in 1362-63 BS and re-appeared in 1374 BS Clauses(2) and (3) attracted because diluvion took place before 'the commencement ofPO No. 135 of 1972—Plaintiffs tight was never recognised under clause (3) ofsection 86—The view taken by the lower court and upheld by High Court Divisionis correct.

It appearsfrom the footnote under section 79 of the Act (published by the Government)that Notification in respect of entire areas under the Police Stations ofMuladi, Mehendiganj was published in the Gazette on 13 May 1958, that is longbefore 1967.

SyedNizamuddin Mohsin vs Bangladesh 41 DLR (AD) 141.

Sections 86(3) & 146—151

Settlementof land granted by the Revenue Authority cancellation of settlement by theGovernment whether lawful—Under section 146 of the Tenancy Act the generalpower of superintendence and control over all Revenue Officers is vested in theBoard of Land Administration and not the Government. The Board of LandAdministration is not however empowered to revise under section 146 the orderspassed by the Revenue Officer under the Act, although the Board is the finalauthority to entertain appeal and revision against any order passed under theAct by a Revenue Officer including an order granting settlement of land. Thereis nothing to show that the Government is empowered under any provision of theState Acquisition and Tenancy Act to cancel or rescind any order passed by theRevenue Authorities.

SaifurRahman vs Bangladesh 43 DLR 210.

Sections 89 & 96—

The periodof ignorance as to the sale of a land sought to be pre—empted cannot extend to12 years when the pre-emptee had beencultivating the land within the sight of the pre—emptor for over a decade.

HabiburRahman@ Md Habibur Rahman & another vs Moborak Ali Rariand others 50 DLR55.

Section 90—

Waiver— Thepre-emptee purchaser having not specifically pleaded earlier that thepre-emptor is not a bonafide cultivator, he cannot be allowed to plead it atthe revisional stage—he is deemed to have waived the right to object thepre-emption application on that score.

Idris Mia vsPromode Ranjan Das 45 DLR 126.

Section 90—

Mereomission to make an assertion in his application or to adduce evidence to thiseffect, in the absence of any averment to the contrary, will not renderpre-emption application liable to be dismissed.

Abul Kalam(Md) and others vs Md Shamsuddin 49 DLR 502.

Sections 90 and 96—

Pre-emptionunder section 26F of the Bengal Tenancy Act (VIII of 1885)—Whether the same canbe allowed in favour of the pre-emptor applicant who admitedly owns more than100 bighas of land exceeding the land ceiling prescribed by PO No. 98 of 1972—The question of land holding limitation upto 100 bighas of land does not ariseas the Munsifs order was passed in 1967 when there was no law limiting and holdingto 100 bighas. Appeal dismissed.

AzizurRahman vs Bhayetullah 40 DLR (AD) 224.

Section 92(4)—

Theprovision for institution of a suit in the Civil Court within 90 days of theorder of the Government treating a property as an abandoned property does notprovide any penal consequence for the failure of the aggrieved party toinstitute the suit within 90 days and, as such, it cannot be said that theaggrieved party is debarred from challenging the order of the Governmentsubsequently by instituting a suit.

Hindu DetiyLakshmi Gobinda Jeu vs Deputy Custodian Enemy Property and others 51 DLR 300

Section 95 & 95A—

Thelegislative intent of section 95A is that cases of sale attended with agreementfor recoveyance whether or not registered would be within the ambit of completeusufructuary mortgage for a period of 7 years and provisions of section95(4)(5) would apply to such transfers. A contrary view would make theprovision of section 95A nugatory and frustrate its purpose.

Abdus SalamSheikh and others vs Puspa Rani Shil and others 49 DLR (AD) 71.

Section 95 & 95A—

Apart fromthe provision of section 95A of the State Acquisition and Tenancy Act and theremedies under section 95 of the said Act, the remedy of civil Court is alwaysavailable to the mortgagor in case of a mortgage.

Abdul GaniKha vs. Md Abdul Aziz Azizur Rahman and others 49 DLR 172.

Sections 95 & 95A—

President'sOrder No. 88 of 1972 created special forum for restoration of mortgagedproperty. But it did not take away right of redemption available to a mortgagorby filing a mortgage suit.

Asmat Ali vsAbdur Rafique Mridha and others 52 DLR (AD) 132.

Section 95(4)—

CircleOfficer (Revenue) while passing an) order under section 95(4) is not a courtsubordinate to the High Court Division within the meaning of section 115 CPC.

Md Salim vsZaker Ahmed 39 DLR 306.

Section 95A—

In a case ofcomplete usufructuary mortgage the agreement to reconvey must have beenexecuted and registered by the purchaser himself or his attorney constituted forthat purpose.

Nurul IslamChowdhury & another vs Upazila Revenue Officer, Patiya, Chittaogng &others 48 DLR 2 5.

Section 95A—

Ekrarnamadoes not necessarily mean an undertaking to reconvey any land, it may be forvarious other purposes. The meaning of a particular 'ekramama' has to be drawnfrom its contents.

KamadaRanjan Bhattacharjee vs. Kohinur Chowdhury and others 49 DLR 454.

Section 95A—

Reconveyance—Thedocument for reconveyance is to be executed in the same sitting at a time whenthe document for transfer of land by way of out and out sale is executed andregistered.

Rup CharanDas and another vs Bangladesh and others 48 DLR 94.

Section 95A & (2)—

Agreement ofreconveyance with a deed of sale, will not be required to be registered in viewof the fact that in section 95A the two things namely, the deed of sale and anagreement of reconveyance shall be deemed to be a complete usufructuarymortgage.

Puspa RaniShil and others vs. Member No. 1, Land Appeal Board, Government of Bangladesh,and others 49 DLR 45.

Section 95A & 95(2)—

An agreementfor reconveyance can be specifically enforced and the provision forregistration for such agreement as required under section 95(2) of the Act isnot applicable. Even an oral agreement proved by sufficient evidence may bespecifically enforced by the transferor.

Abdul Kaderand another vs Abdul Aziz and others 47 DLR 67.

State Acquisition and Tenancy Act, 1950 [Section 96] - Part I

StateAcquisition and Tenancy Act, 1950 [XXVIII of 1951]

Section 96—

Considerationof the documents as to the devolution of the vendor's interest on thepre—emptor did not materially affect the decision.

BhupatiRanjan Shame & others vs Afizuddin Sheikh 40 DLR (AD) 264.

Section 96—

A personagainst whom an ex parte decree has been passed cannot borrow the analogy ofsection 96 and take upon himself an added advantage of another 30 days to filethe miscellaneous case.

ChowdhurySaifuddin vs Shamsuddin 40 DLR 10.

Section 96—

Appealagainst the order of dismissal of case under section 96(12) of the StateAcquisition and Tenancy Act is maintainable. Dismissal of appeal is illegal.

WazuddinPramanik vs Zul Huq 40 DLR 363.

Section 96—

Pre-emption—Co-sharerin one of the plots of the holding is a co-sharer in the holding—Impleading ofa co-sharer, whether by inheritance or by purchase, in an application forpre-emption under section 96 of the Act is mandatory—Omission to implead aco-sharer in the application renders the pre-emption application liable to bedismissed for defect of party.

Sultan Ahmedvs Akhtaruzzaman 42 DLR (AD) 1.

Section 96—

The omissionto implead a co-sharer was pointed out at the earlier point of time, but thesame was not rectified—In the circumstances, the order of the trial Court whichwas restored by the High Court was not sustainable.

Sultan Ahmedvs Akhtaruzzaman 42 DLR (AD) 1.

Section 96—

Long line ofdecisions of the erstwhile Dhaka High Court has followed the principle that thedate of accrual of the right of pre-emption is not the date of execution of thesame deed· but the date of registration under section 60 of the RegistrationAct.

AbdulMotalib vs Iman Ali Mollah 42 DLR (AD) 123.

Section 96—

As a rule noamendment is allowed where its effect will take away any legal right, whichmight have accrued by lapse of time. Here the transferee has failed to showwhat legal right had accrued to him which will be washed away by allowing theamendment—Then again as a rule the Court refused an amendment if the amendmentintroduces a totally new and inconsistent case which may require furtherevidence to be adduced by the opponent—In this case no legal right accrued tothe respondent except the right of rateable pre-emption—The amendment isallowed and it will relate back to the date of the institution of thepre-emption case.

Amendment ofpleadings under Order VI, rule 17 CPC—Special limitation prescribed undersection 96 of the State Acquisition and Tenancy Act—The question of limitationmay arise in two cases (i) whether the claim to be included was barred on thedate of the institution of the suit, (ii) whether the claim is barred on thedate of the prayer for amendment—In this case the amendment will relate back tothe date of the institution of the case.

ShushilRanjan Dutta vs Al-Haj Moulvi Idris Mia 42 DLR (AD) 110.

Section 96—

Right ofpre-emption—Waiver and acquiescence in pre-emption: Facts proved in aparticular case may give rise to waiver and acquiescence and a pre-emptor maybe held to be estopped from enforcing his right of pre-emption. It will be aquestion of proper inference from the facts provided in each particular case asto whether the plea of waiver and acquiescence exists or not.

AkhlasurRahman vs Safarullah 42 DLR (AD) 189.

Section 96—

Right ofpre-emption—Nature of the right—The foundation of the right is avoidance ofinconvenience and disturbance which would arise from the introduction of astranger into the land. Law of pre-emption imposes a limitation or disabilityupon ownership of a property to the extent that it restricts the owner'sunfettered right of sale and compels him to sell the property to his coshareror neighbour. The benefit and the burden of the right of pre-emption run withthe land and can be enforced by and against the owner of the land for the timebeing. The right can be waived or relinquished at an earlier date than on thedate of actual completion of sale under the law or thereafter.

AkhlasurRahman vs Safarullah 42 DLR (AD) 189.

Section 96—

With thereconveyance of the land to the vendor sale no longer subsists—Hence there isno cause of action for pre-emption.

Md Abbas Alivs Md Osman Ali 37 DLR 324.

Section 96—

With landbeing retransferred to the vendor there is no sale and no cause for preemptionwould arise.

Md Abbas Alivs Md Osman Ali 37 DLR 324.

Section 96—

Applicant'sright to pre-emption comes into being when order is passed under section 96(7)—Beforethat it is an inchoate right which may be defeated with the land going back tothe vendor.

Md Abbas Alivs Md Osman Ali 37 DLR 324.

Section 96—

If theapplicant's right to preempt is lost pre-emption proceeding becomesinfructuous - Preference which might beclaimed over the vendor no longer available.

Md Abbas Alivs Md Osman Ali 37 DLR 324.

Section 96—

The vendorand the vendee are at liberty to avoid pre-emption by all lawful means.

Md Abbas Alivs Md Osman Ali 37 DLR 324.

Section 96—

If the landsold is reconveyed to the vendor before pre-emption proceeding starts it shouldbe taken as no sale.

Md Abbas Alivs Md Osman Ali 37 DLR 324.

Section 96—

Pre-emptionclaim fails if the person seeking to pre—empt is in loco parentis with thepre-emption—In a case of acquiescence principle of estoppel is applicable.

Abdul Karimvs Nurjahan Begum 38 DLR 361.

Section 96—

Byconsenting to a transfer made in pursuance of a compromise—decree a personloses his right of pre-emption altogether.

Abdul Karimvs Nurjahan Begum 38 DLR 361.

Section 96—

Knowledge—Questionof fact —a precise or exact perception of the necessary particulars of fact isthe determinant of the "knowledge".

Abdul Sattar& another vs Osimuddin & others 42 DLR 24.

Section 96—

Apre-emptor who has given his consentbefore sale, should not be allowed to assert his claim after the sale.

Abdul Karimvs Nurjahan Begum 38 DLR 361.

Section 96—

Waiver andacquiescence on the part of pre-emptor may be inferred from the circumstances.

Abdul Karimvs Nurjahan Begum 38 DLR 361.

Section 96—

A co-shareris competent to initiate the present pre-emption proceeding by filing oneapplication under section 96(1) of the State Acquisition and Tenancy Act by preemptinglands transferred by different Kabalas where cause of action has been unitedunder Order II, rule 3 CPC and the pre-emptor is not required in law to seek leave of the Court for this purpose.

Knowledge ofthe date of sale—A finding as to knowledge of the petitioner about the sale ofthe land under pre-emption is a finding of fact and unless finding suffers frominfirmity or it is perverse, the High Court Division will not interfere withthe finding of the lower appellate Court in its revisional jurisdiction.

Sree JitendraNath Howlader vs Sree Bisweswar Howlader 42 DLR253.

Section 96—

When a validorder under section 117 of State Acquisition and Tenancy Act is given, thecourt is not competent to ignore the said order when disposing of a case undersection 96 of the said Act.

M Banik vsNitya Ranjan 39 DLR (AD) 75.

Section 96—

Pre-emptionpetition—Prematurity—Though cause of action for pre-emption accrues on thedate of registration of Kabala yet in case of premature filing of pre-emptionapplication, the prematurity is cured when registration is effected during thependency of the case.

Idris Mia vsPromode Ranjan Das 45 DLR 126.

Section 96—

Proportionatepre-emption Intending pre-emptee, a holder of contiguous land, by not filing apre-emption application within the specific period of time, had simply waivedhis right to proportionate pre-emption.

Idris Mia vsPromode Ranjan Das 45 DLR 126.

Section 96—

Where duringthe pendency of a pre-emption case a decree is passed in a suit where thepre-emptor is not impleaded as a party, the decree does not defeat his right topreemption.

Hazrat Aliand another vs Kudrat Ali & others 45 DLR 658.

Section 96—

Pre-emption—Causeof action —Cause of action for pre-emption accrues on the date of registrationof a sale deed when registration is compulsory, because the right topre-emption arises on completion of a transfer. If a pre-emption application isfiled before registration of the sale deed, it is not to be dismissed on theground of pre—maturity if the same is registered during the pendency of preemptionproceeding.

AyeshaKhatun vs Jahanara Begum 43 DLR (AD) 9.

Section 96—

Partialpre-emption—Five holdings were transferred by a single Kabala. The petitionerdeposited consideration money for four holdings seeking pre-emption thereof.There was no difficulty in allowing him pre-emption of four holdings aspre-emption is holding—wise. Such pre-emption is not hit by the doctrine ofpartial pre-emption.

KarimunessaBegum Chowdhurani vs Niranjan Chowdhury 43 DLR (ADJ 108.

Section 96—

Muktipatra—Itsreal import The pre-emptee failed toprove his motive for acquisition of the case land in the benami of SwapanKumar—the question of deed of release by him in favour of pre-emptor Momtaz Ali does not arise and so the impugneddeed is a transfer deed. The judgment of the High Court Division is liable tobe set aside and the pre-emptor is entitled to the pre-emption.

Abdur Rashidvs Momtaz Ali Karikar 44 DLR (AD) 270.

Section 96—

Pre-emption—Pleaof gift to defeat pre-emption when not tenable—The deed of gift though executedearlier was registered after registration of the disputed sale deed sought tobe pre-empted. So the deed of gift cannot have the effect of destroying theright of pre-emption nor can it affect the right of pre-emption inasmuch as aparty at his own will cannot exclude the operation of the statute providing forpre-emption.

AlesuddinMandal vs Md Toyezuddin Dewan 44 DLR 105.

Section 96—

Limitationfor pre-emption—Limitation in case of a proceeding under section 96 of the Actdoes not start from the date of execution of the document transferring the landbut from the date when the document is registered under section 60 of theRegistration Act.

Abdul Majidvs Akhil Chandra Sengupta 43 DLR 506.

Section 96—

Nature ofthe land sought to be pre—empted and the question of maintainability ofproceeding under section 96 of the Act—Avocation of tenant does not determinethe character of the land—The initial purpose for which the lease is createdand the subsequent user of it determines the nature of the land—Entry in theCS and SA Khatians that the land is a "Bhiti" meaning it to be anon—agricultural land cannot be wiped out merely on the basis of a recital in .the deed describing the land as a "Chashi—Bhiti" land—Although fromthe homestead standing on the disputed land agricultural operation is carriedout, that does not change the nature of the land. Appellate Court judgmentdismissing the pre-emption case being not maintainable under section 96 of theAct needs no interference.

Adam AliBepari vs Abdur Rahman Dewan 43 DLR 510.

State Acquisition and Tenancy Act, 1950 [Section 96] - Part II

StateAcquisition and Tenancy Act, 1950 [XXVIII of 1951]

Section 96—

Right ofpre-emption— Waiver and acquiescence—Statutory right of pre-emption cannot betaken away by mere verbal assurance of the person having such right, unless otherfacts and circumstances clearly make out a case of acquiescence or waiver.

Fazaruddinvs Maijuddin 44 DLR (AD) 62.

Section 96—

The right ofpre-emption accrued to the pre-emptor is not affected by the subsequentacquisition of co-shareship by the pre-emptee.

Abdul Batenvs Abdul Latif Sheikh 45 DLR (AD) 26.

Section 96—

Right ofpre-emption is a heritable right—In a pending proceeding the heirs are entitledto be substituted in the place of the deceased pre-emptor so as to proceed with the case.

Inu Mia andothers vs Mokhlesur Rahman & others 45 DLR (AD) 171.

Section 96—

Principle ofcontiguity— Preemption in respect of two plots transferred when cannot beallowed—Admittedly the pre-emptor 's land, plot No. 2575, is contiguous to plotNo. 2574, but it is not contiguous to plot No. 2573. If both these plots wereclosely contiguous to each other and formed a compact block of land, then onlythe principle could be applied.

JahiruddinMollah vs Hosne Ara Begum 45 DLR (AD) 118.

Section 96—

Hardship topurchaser of land—It is a great hardship to be deprived of the case landwithout being paid the price prevailing at the time of execution andregistration of the disputed sale deed. But section 96 of the State Acquisitionand Tenancy Act having not provided relief for such circumstances it is notwithin the power of this Court to mitigate such hardship.

Lal ChandSardar vs Abdul Huq Howlader and others 47 DLR 401.

Section 96—

Reconveyancemade during pendency of a pre-emption proceeding cannot take away the right ofpre-emption of the cosharer.

Khorshed Aliand another vs Aftabuddin and others 47 DLR 607.

Section 96—

To revealthe truth whether a transfer in question is really sale or not, in a preemptionproceedings can be looked into so that law cannot be violated or broken down bythe unscrupulous person in the society.

BaseruddinPramanik (Md) vs Golapjan Bewa 48 DLR 137.

Section 96—

Homestead isincluded within agricultural holding and, as such, it is pre-emptible.

MuslimHalder (Md) vs Hajrat Ali Halder & others 48 DLR 175.

Section 96—

Since theKhatians are different the pre-emptor cannot be held to be a co-sharer in thecase holding and as such she is not entitled to pre-emption.

Fatema Bibivs Sree Manik Lal Somaddar & others 50 DLR (AD) 97.

Section 96—

Suit-holdingbeing homestead situated in the rural area is an agricultural land pre-emptibleunder section 96 of the Act.

AbdulKhaleque vs. Abdur Noor and others 49 DLR 74.

Section 96—

lt isinconceivable as to why for non-deposit of the improvement cost at the time offiling of the pre-emption case, which is yet to be determined by the Court ontaking evidence, pre-emption could be refused.

Abul Kalam(Md) and others vs Md Shamsuddin 49 DLR 502.

Section 96—

Section 96is confined to agricultural land and, therefore, a right of preemption underthis section cannot be claimed in respect of homestead land within amunicipality.

Mantu Farajialias Jamal Faraji and others vs Mahiuddin Khan 50 DLR 147.

Section 96—

The statutoryright of preemption cannot be defeated by a casual plea of waiver andacquiescence unless a clear case of estoppel is made out by cogent andconvincing evidence and unless by conduct the pre-emptor is proved to be in loco parentis with thepre-emptee and he has taken an activepart in bringing about the disputed transfer.

TaheraKhatun Bibi and others vs Abdul Jalil Mandal 51 DLR 134.

Section 96—

Theprinciple as to deposit is not rigid and it is not mandatory that the entiredeposit, both the consideration money and compensation, should be paid beforefiling of the case.

Abdus SobhanSheikh vs Kazi Moulana Jabedullah and others 52 DLR 289.

Section 96—

Since theorder of amendment relates back to the date of filing of the case, the instantcase is not barred by limitation as it was filed originally within thestatutory period of 120 days.

Abdus SobhanSheikh vs Kazi Moulana Jabedullah and others 52 DLR 289.

Section 96—

Non—Agriculturalland means a piece of land in joint possession and enjoyment without partitionwhich may form the tenancy or a portion of tenancy. Syed Sad Ali vs Bidhan ChandraDev and ors 52 DLR 609.

Section 96—

Subsequentbecoming of co-sharers by inheritance during pendency of the case cannot alterthe character and status of the original pre-emptor.

MomtazuddinSarker and others vs Abdur Rob and others 53 DLR (AD) 67.

Section 96—

Claim ofPre-emption—Estoppel—The petitioner was not only aware of the transfer made byhis own brother but he had also given consent to the transaction havinginvolvement in the negotiation. He may be held estopped from enforing his rightof pre-emption.

AumullayaChandra Haldar vs Md Mohsin Ali Mandal & ors 54 DLR 500.

Section 96—

SazedaKhatun vs Asad Ali and others 54 DLR 285.

Section 96—

Pre-emption—Limitation—Thepre-emptor claimed to have knowledge ofthe transfer of the land after six and half years of the transfer. He offeredno explanation for such a late knowledge nor did he explain the source of hisknowledge of the transfer. So, his claim is not credible.

MadinullahMiah vs Md Abdul Mannan & anr 54 DLR 507.

Section 96—

The defectwas brought to the notice of the pre-emptor by the pre-emptee at the earliestopportune moment and yet the pre-emptor took no step to amend his plaint and make all the co—sharers of the'case holding' parties in the case. The Subordinate Judge, when he found defectof parties, ought to have dismissed the case, instead of remanding it to theCourt below.

MadinullahMiah vs Md Abdul Mannan & anr 54 DLR 507

Section 96—

Order XLIII,rule 1 of The Code contains provisions for appeal against an order passed in asuit. Order XLIII, rule l(c) does not provide for an appeal against an orderrejecting a petition laid under Order IX, rule 9 of the Code directed forrestoration of a pre-emption ·proceeding on setting aside order of dismissal.

HaripadaMandal vs Bidhan Chandra Mondal 55 DLR 515.

Section 96—

In apre-emption case the trial Court is not precluded from determining thepetitioner's prima facie right in the case holding acquired through the kabalaproduced in Court.

Badiul Alambeing dead his heir Fazlul Karim vs Md Nurul Islam 55 DLR 517.

Section 96—

In apre-emption case when the case holding does not appear to be a mortgagedproperty or charged for mortgage sale, such holding even if sold in executionof any money decree, any alienation by the judgment debtor does not come withinthe purview of the doctrine of lis pendens in absence of the proof of serviceof notice under Order XXI, rule 54 of the Code upon the alienor or the alieneeas the case may be.

Badiul Alambeing dead his heir Fazlul Karim vs Md Nurul Islam 55 DLR 517.

Section 96—

Right ofPre-emption accrues after transfer of land and statutory right of preemptioncannot be taken away by mere verbal assurance of the person having such rightunless other facts and circumstances clearly make out a case of acquiescence orwaiver.

IqbalHossain Talukder (Md) vs Md Joinal Abedin Talukder and 76 ors 55 DLR 604.

Sections 96, 96(10)(c)—

A deed ofHiba-Bil-Ewaj in exchange of Jainamaj, Tajbih and the Holy Quran is not atransfer for any pecuniary consideration. Such a transfer in a holding by adeed of Heba-Bil-Ewaj within three degrees of relationship by consanguinitybetween the donee and the donor, is exempted from pre-emption. As a sequel toit any subsequent purchase by the donee of any land in the holding is outsidethe purview of pre-emption.

Jinnat Ali(Md) vs Md Abdu Bakkar Siddique and others 55 DLR 92.

Sections 96 & 117—

Unless it issatisfactorily proved that the parent jama has been separated in accordancewith the provisions of section 117 of the SAT Act on proper service of noticesupon all the co—sharers, the parent jama remains intact and a co-sharer to theholding continues to be a co-sharer to it and his right of pre-emption remainsunaffected.

TofazzalHossain (Md) and others vs Momtaz Begum 52 DLR 223.

Section 96(1)—

"Knowledge"as referred to in sub—section ( 1) of section 96 of the Act means and includesa definite and complete knowledge in order to qualify the petitioner to filepreemption application.

Abdul Sattar& another vs Osimuddin & others 42 DLR 24.

Section 96(1)—

Limitationreferred to in subsection (1) of section 96 not applicable when a pre-emptor makes an application for pre-emption againsta purchaser.

For thepurpose of impleading a remaining co-sharer in a proceeding under section 96 ofthe Act the period of limitation as provided in subsection (1) of section 96of the State Acquisition and Tenancy Act in filing an application for preemptionby pre-emptor against a purchaser forpre—empting the latter's kabala shall not apply.

Abdul Barekvs Yarunnessa 37 DLR 151.

Section 96(1)—

There beingno evidence of record by the pre-emptee challenging the date of knowledge of the pre-emptor about the transfer of the land, thecontention that the application for pre-emption is barred by limitation isuntenable in law.

Jafar Ali vsHushiar Ali 46 DLR (AD) 187.

Section 96(1)—

Choice ofsome holdings for pre-emption out of several holdings sold, whether it will bea case of partial pre— emption— The effect and purport of section 96( 1) of theSAT Act is not that the right of pre-emption accrues only holding—wise but alsotransaction—wise. The clear intention of the Legislature was to confer a rightof pre-emption holding—wise and not transactionwise. In the context of section2(13) of the SAT Act read with section 96(1), the right of preemption has notbeen conferred with reference to the number of properties transferred by aparticular deed. A distinct right has been conferred in respect of a distinctholding.

BirendraNath Chakraborty vs Subal Chandra Biswas 43 DLR 276.

Section 96(1)—

Decision ofthe Courts below allowing prayer for pre-emption to the extent of shares offictitious sellers is illegal.

Solaiman AliSheikh (Md) and others vs. Abu Bakar Siddique Sheikh and others 49 DLR 477.

Section 96(1)—

Whenpre-emptor exercises his right ofpre-emption after a long lapse of time a heavy duty is cast upon him to provehis knowledge about the impugned transfer by most convincing evidence so as tocircumvent the apparent bar of limitation.

HabiburRahman alias Md Habibur Rahman and another vs Mobarak Ali Rari and others 50DLR 193.

Section 96(1)—

There beingno evidence on record challenging the date of knowledge of the pre-emptor about the transfer of the land, thecontention that the application is barred by limitation is untenable in law.

Abdur RashidMia (Md) vs Md Hasem Ali Mia 56 DLR 155.

Section 96 (1)(2)—

Once thepre-emptor files pre-emption applicationwithin the statutory period of 4 months such application is not liable to failfor non—impleading of necessary parties within the period of said 4 monthsprovided such necessary parties are impleaded at any stage of the proceedings.

Abdus Satterand others vs Abdun Noor and others 49 DLR 414.

Section 96(1)(4) as also clause (b) of section 96 (6)—

Court'sdirection to make deposit in case of rateable pre-emption.

Where the transfereeis also an applicant for rateable pre-emption despite the fact that he isentitled to receive back the money he has paid he must make the depositproportional to the ratable pre-emption, but the court may grant an exemptionregarding his deposit in his case.

Abdul HadiBepari vs Safaruddin Mondal 38 DLR (AD) 265.

State Acquisition and Tenancy Act, 1950 [Section 96] - Part III

StateAcquisition and Tenancy Act, 1950 [XXVIII of 1951]

Section 96(2)—

A co-sharercan be added before trial begins as party to a pre-emption proceeding undersection 96(2) even alter the period of limitation for filing an application forpre-emption has expired—In a proper case such a prayer can however be refused.

Abdul Barekvs Yarunnessa 37 DLR 151.

Section 96(2)—

Order I,rule 9 of the Code of Civil Procedure is applicable in case of non-joinder ofnecessary parties in the application for pre-emption in view of section 141 ofthe Code of Civil Procedure. Section 96(2) of the said Act creates obligationon the part of the pre-emptor to make co-sharer tenants in the disputed holdingas parties to the pre-emption application.

Abdus Satterand others vs. Abdun Noor 49 DLR 414.

Section 96(2)—

Omission tomake a party if bonafide, should not be refused on the ground of delay, for thesake of proper and complete adjudication.

HasinaKhatoon and another vs. Md Samsur Rahman and others 49 DLR 187.

Section 96(3)(a)—

In apre-emption case when the statutory deposit of money was already received bythe pre-emptee upon a compromise thatthe case will not be contested, the pre-emptor when circumstanced to take a second proceeding for pre-emption of theself—same land, need not deposit consideration money again.

Ishaque Ali(Md) vs. Danesh Ali and others 49 DLR 294.

Section 96(3)(a)—

SazedaKhatun vs Asad Ali and others 53 DLR 563.

Section 96(3)(a)—

Under thisprovision the Court has no jurisdiction to ignore the amount as considerationfor the transfer for all purposes including that of the valuation of theproceeding for its pecuniary jurisdiction. The proceeding under section 96 ofthe Act is essentially summary in nature.

SazedaKhatun vs Asad Ali and others 54 DLR 285.

Section 96(3)(a)(b)—

Whatever maybe the actual payment of consideration, the parties are bound by the recital ofthe kabala in question and if the consideration written in the kabala isdeposited along with the statutory compensation such deposit cannot beconsidered to be insufficient or inadequate.

AumullayaChandra Haldar vs Md Mohsin Ali Mandal 54 DLR 500.

Section 96(3)(b)—

The learnedCounsel appearing for the appellants canvassed that it was statutory obligationon the part of the pre-emptor to depositthe balance consideration within the period and since he failed to do so theprayer was illegally granted. This point has no substance.

By opposingrespondent's prayer for deposit of the balance consideration the appellantswere trying to achieve something indirectly namely, frustrating the verypre-emption proceeding—The payer was rightly granted—High Court Division wascorrect in taking the view.

Serina Begumvs Mafizul Islam 42 DLR (AD) 77.

Sections 96(3)(b) & 7(b)—

The trialCourt's order rejecting application praying for improvement expenses for theland sought to be pre—empted is contrary to the provisions of section 96(3)(b)& 7(b).

MonabbarHossain vs Joynal Abedin 46 DLR 377.

Section 96( 4)—

Transferee—co-sharer—Hisright to purchase when lost— The pre-emptee tried to resist the claim of the pre-emptor but did not join in the application forpre-emption. Such pre-emptee cannot be granted relief in the name ofeven—handed justice on the ground that the parties being co—sharers by purchasestood on equal footing.

GolcheraKhatun vs Sayera Khatoon 45 DLR (AD) 133.

Sections 96( 4) & 6(b )—

Theapplicant, a co-sharer by inheritance, steps into the shoes of thepre-emptor and both the provision ofsections 96(4) and 6(b) of the Act are applicable in his case—It would not bean illegality to order him to deposit the consideration money together with thecompensation prior to the determination of the issues as to limitation andco-sharership.

Chan Miah(Md) vs Md Dabirul Islam Khan 106.

Section 96(6)(b)—

Undersection 96(6)(b) of the State Acquisition and Tenancy Act it is the duty of theCourt while allowing an application of a co—applicant for proportionatepre-emption to determine the amount to be paid by the co-applicant withinreasonable time and the co-applicant is not required to deposit the amount suomotu on his application.

The right ofa co—applicant to proportionate pre-emption is lost by dismissal of theoriginal pre-emption case but on restoration of the same at the instance of theoriginal applicant the right of the co—applicant is restored although therestoration of the original case was not at his instance inasmuch as the caseis restored in its entirety with all its legal consequence.

HimanshuBikash Singha vs Maulavi Serajul Islam 40 DLR 246.

Sections 96(9)(C) & 151—

Applicationof section 5 of the Limitation Act in a proceeding under section 96 of theState Acquisition and Tenancy Act has not been barred where residuary Article181 of Limitation Act has been made applicable. The Court may in his discretioncondone the delay in preferring an application under section 96(9)( c) of theState Acquisition and Tenancy Act provided the condition of section 5 of theLimitation Act is fulfilled.

Shamser Alivs. Toimus Ali 49 DLR 488.

Section 96(10)—

When atransfer is made as in the present case by way of heba-bil-ewaz and thetransferees are not within three degrees of consanguinity the pre-emption is tobe allowed.

Solaiman AliSheikh (Md) and others vs Abu Bakar Siddique Sheikh and others 49 DLR 477

Section 96(10)—

A transferby bequest or gift or by exchange is excluded from the clutch of preemption.

Hafiz Ahmedvs Ahmedur Rahman and others 48 DLR 170.

Section 96(10)(b)—

When thenature of transaction becomes doubtful on the specific allegation made by thepre-emptor then the matter is requiredto be tested by adducing evidence in order to ascertain the nature oftransaction and to decide the case properly.

AlfazuddinMollah and others vs Md Almas Chokder and anr 179.

Section 96(10)(c)—

Pre-emption—Relations by consanguinity—the donor's daughter's sons are not relations byconsanguinity within three degrees of the donor. They cannot, therefore, getthe protection of clause (c) of sub—section (10) of section 96 of the StateAcquisition & Tenancy Act. The Courts below committed error of law in theirdecisions occasioning failure of justice in holding otherwise.

Mr.Amanullah vs Mohammad Sharif 44 DLR 228.

Section 96(10)(c)—

A cousinsister's son is within three degrees of consanguinity from the donor.

ShamsulIslam and others vs Badiar Zaman alias Bablu and another 48 DLR (AD) 88.

Section 96(10)(c)—

Thisprovision restricts the right of pre-emption by providing that when a portionor share of a holding is transferred by gift by the husband to the wife andvice versa or ifthe donee is a relation of the donor by consanguinity withinthree degrees, it has not been designed to help the donor or donee to curtail theright of preemption of a co-sharer of a holding where his right of pre-emptionhas already arisen prior to such gift.

Tayeb (Md)vs. Haji Najir Ahmed and others 49 DLR 253.

Section 96(10)(c)—

Atransaction by way of Hiba-bil-Ewaz without pecuniary consideration is coveredby the exception mentioned under section 96(10)(c) and the land covered by suchdeed of Hiba-bil-Ewaz is not pre-emptible. But such land would otherwise bepre-emptible if the donee is not a relation of the donor within three degreesby consanguinity.

GolamMustafa and others vs Kazem Ali Khan @ Kazal Khan and others 50 DLR 544.

Section 96(10)(c)—

Heba-bil-Ewazis valid and complete even without delivery of possession.

GolamMustafa and others vs Kazem Ali Khan @ Kazal Khan and others 50 DLR 544.

Section 96(10)(c)—

Since thedeed of Hiba-bil-Ewaj was validly made it was not liable to be cancelled bydonor by the deed of cancellation unilaterally except by filing a proper suitin this behalf.

GolamMustafa and others vs Kazem Ali Khan @Kazal Khan and others 50 DLR 544.

State Acquisition and Tenancy Act, 1950 [Section 97 - 151]

StateAcquisition and Tenancy Act, 1950 [XXVIII of 1951]

Sections 116 & 117—

Sections 116and 117 of the State Acquisition and Tenancy Act have provided procedure foramalgamation and subdivision of a tenancy or holding, and aft~ a validsubdivision of a holding and distribution of the rents, preemption at theinstance of a co-sharer of the former joint holding is not maintainable.

SM NasirulHaque vs Omar Faruque Chowdhury and others 54 DLR 181.

Section 117—

When a validorder under section 117 of the State Acquisition and Tenancy Act is given, thecourt is not competent to ignore the said order when disposing of a case undersection 96 of the said Act.

M Bank vsNitya Ranjan 39 DLR (AD) 75.

Section 117(i)(c)—

Noticehaving not been served upon co-sharers, mutation and subdivision effectedbehind their back cannot be said to be valid sub-division or splitting up ofjama and in such case co-sharer in the joint tenancy cannot be said to havelost their right of pre-emption .

GalamMostafa vs Begum Rokeya Khandaker, & others 53 DLR 232.

Section 117(i)(c)—

Uponpartition of the non-agricultural land by metes and bounds by a decree in apartition suit there occurs ceasing of co—sharership among the separatespecific saham holders.

AlfazuddinAhmed vs Abdur Rahman and others 55 DLR (AD) 108.

Section 117(1)(c)—

Separationof jama or sub-division of a holding or tenancy distributing rents, whether inthe case of agricultural land or non-agricultural land, takes place undersection 117(l)(c) of State Acquisition and Tenancy Act. The original co-sharerson such separation cease to be co-sharers.

Shah Alam(Md) vs Md Shahidur Rahman and others 55 DLR 214.

Section 143—

The decisionof the Board of Land Administration travelled beyond its jurisdiction indeciding matters not within its jurisdiction under section 143 of the StateAcquisition and Tenancy Act.

SyedAshfaque Hossain vs Bangladesh 41 DLR 364.

Section 143—

Section 143of the State Acquisition and Tenancy Act provides, inter alia, that the recordof right prepared or revised shall be maintained upto date in the prescribedmanner under Part IV, or under chapter XVII by correcting clerical mistakes andby incorporating the charges on account of the mutation of names as a result oftransfer or inheritance.

Idris Ali vsState 38 DLR 270.

Section 143—

Finding ofRevenue authority carries much weight so far as possession is concerned.

Abdul GaniKhan vs Shamser Ali 45 DLR349.

Section 143—

A RevenueOfficer holding an inquiry in a mutation proceeding, in the premises, does notbecome a court as he does not really adjudicate a right and he does not give adecision which is binding on the parties.

ShaheraKhatun & ors vs State and another 53 DLR 19.

Section 143—

A criminalCourt can take cognisance of any offence described in sections 463, 471, 475and 476 of the Penal Code on the basis of complaint by an aggrieved party whensuch offence is alleged to have been committed by a party to any mutationproceeding in respect of a document produced in evidence in such proceeding.

ShaheraKhatun & ors vs State and another 53 DLR 19.

Sections 143 & 144—

Theprovisions of the Act and the Rules clearly show that the revision of therecord of rights under section 144 of the Act has presumptive value, but anyorder of mutation of the record made under section 143 of the Act has no suchpresumptive value.

ShaheraKhatun & ors vs State and another 53 DLR 19.

Section 143A—

Section 143Ais only concerned with the question of possession of the land—Question of titleto the land is beyond the scope of this section.

Reazuddin vsJatindra Kishore 37 DLR (AD) 202.

Section 143A—

Record ofrights prepared on the basis of possession—High Court Division cannot interferewith lower court's decisions on grounds which cannot be considered in a caseunder section 143A.

Reajuddin vsJatindra Kishore 37 DLR (AD) 202.

Section 143A—

The word"transfer" occurring in section 143(a) is limited to transfer by therecorded tenant, not by other persons. Section 143 is not attracted when the recordof rights is to be corrected after a finding to be given as to the title ofthe holders or challengers.

SyedAshfaque Hossain vs Bangladesh 41 DLR 364.

Section 144—

The onlylogical meaning of the expression 'local area' are understood by this particularstatute in the context of revision of record of rights is primarily area inrespect of which a record of right is to be prepared or has been prepared.

CapitalCo-operative Housing Society vs Bangladesh 45 DLR 289.

Sections 144 and 144A—

The presumptionas regards the entries in the RS Khatian so attached under section 144A of theAct is rebuttable by leading evidence from the side of the person questioningcorrectness of the entry made therein.

Governmentof Bangladesh, represented by the ADC vs AKM Abdul Hye and ors 56 DLR (AD) 53.

Section 144A—

Presumptionas to correctness of record of rights—The plaintiffs having failed to displacethe presumption of correctness of the RS Khatian prepared in the name of thedefendant by proving their title and possession in the suit land, they are notentitled to any decree.

NoorMohammad Khan vs Bangladesh 42 DLR 434.

Section 144A—

A finallypublished record of rights revised under section l l4A of the SAT Act has apresumption of correctness and that presumption continues till it is otherwiserebutted by reliable evidence.

DayalChandra Mondal and others vs Assistant Custodian Vested and Non-ResidentProperties (L&B) 50 DLR I 86.

Sections 146-151—

Settlementof land granted by the Revenue Authority—cancellation of settlement by thegovernment whether lawful—Under section 146 of the Tenancy Act the generalpower of superintendence and control over all Revenue Officers is vested in theBoard of Land Administration and not the government. The Board of LandAdministration is not however empowered to revise under section 146 the orderspassed by the Revenue Officer under the Act, although the Board is the finalauthority to entertain appeal and revision against any order passed under theAct by a Revenue Officer including an order granting settlement of land. Thereis nothing to show that the Government is empowered under any provision of theState Acquisition and Tenancy Act to cancel or rescind any order passed by theRevenue authorities.

SaifurRahman vs Bangladesh 43 DLR 210.

State-owned Manufacturing Industries Workers (Terms and Conditions of Service) Ordinance, 1973

State-ownedManufacturing Industries Workers (Terms and Conditions of Service) Ordinance[XXIII of 1973]

Section 3—

As paymentof bonus to employees is an incentive for service rendered by them, suchpayment of bonus as directed by the Government is not dependent on profit.

Commissionerof Taxes Dhaka (South) Zone, Dhaka vs Ujala Match Factory 54 DLR (AD) 23.

Succession Act, 1925

SuccessionAct [XXXIX of 1925]

Section 28 (with 1st Schedule)—

Pre-emption—Relationsby consanguinity—The donor's daughter's sons are not relations by consanguinitywithin three degrees of the donor. They cannot therefore, get the protection ofclause (c) of sub—section (I 0) of sections 96 of the State Acquisition &Tenancy Act. The Court below committed error of law in their decisionsoccasioning failure of justice in holding otherwise.

MirAmanullah vs Mohammad Sharif 44DLR228.

Section 211—

Therespondent is not without any remedy for the execution of the decree in case ofa suit for specific performance of contract as the executor is a legalrepresentative for all purposes.

Shubra NandiMajumder vs Begum Mahmuda Khatoon 42 DLR (AD) 133.

Section 213—

Section 213of the Succession Act does not debar the executor or legatee from instituting asuit. It precludes him from obtaining a decree until a probate/letter ofadministration of the will is granted.

Most.Golbanu vs Sreemati Uma Rani Roy Chowdhury 38 DLR 175.

Section 213—

The decisionreported in 1987 BLD 244 that the executrix of the Will of the deceasedappellant is entitled to prosecute the appeal as substituted appellant in placeof the deceased appellant before she obtains probate of the Will cannot beagreed with.

Subhra NandiMajumder vs. Amar Prasad Bhattacharjee and others 49 DLR 227.

Sections 237, 238 & 239—

The original'Will' need not be annexed with the application for probate in respect of casesmentioned in sections 237, 238 and 239 of the Act. In cases of non-availabilityof the original 'Will' a draft copy or statement of the contents thereof may beannexed.

Durga RaniSutradhar vs Paresh Chandra Sutradhar 55 DLR 600.

Section 263—

Dismissal ofan application by a person made under Order I, rule 10, CPC to be added as aparty in a probate proceeding does not deprive the party of its right to applyfor revocation of grant of probate under section 263 of Succession Act (thepetitioner).

Azifa Khatunvs Tulshi Ranjan Roy 37 DLR 268.

Sections 265, 272 and 286—

Proceedingsof the District Judge and the District Delegate in respect of grant of probateand Letters of Administration are not the same. District Delegates appointedunder section 265 can grant probate and Letters of Administration only "innon-contentious issues". Power of District Delegate under sections 265,272 and 286 of the Act is strictly confined to non-contentious issues.

Kalpana DasGupta vs Bangladesh 40 DLR 373.

Section 268—

Whenproceeding ceases to be non-contentious, the District Delegate has to stop theproceeding.

Kalpana DasGupta vs Bangladesh 40 DLR 373.

Section 276—

In ourcountry an application for probate or letters of administration is governed bythe old law i.e. the Limitation Act, 1908, and there is no bar of limitation inapplying for the grant of probate or letters of administration or revocationthereof.

MoktaHossain vs Budhi Bala Dashi 48 DLR 202.

Section 276—

In a suitfor probate or letters of administration all that the Court is to see is thatif the Will in question is a genuine one and then the Court is required to seeif the testator had disposing mind at the time of execution of the Will.

MoktarHossain vs Budhi Bala Dashi 48 DLR202.

Section 283—

In a probateproceeding the Court is required to consider whether the will was duly executedand it is not the concern of the Court to decide whether the testator had titleto be a testator—A person who claims outside or independently of the will orclaims adversely to the testator and disputes his right to deal with theproperty cannot be deemed to claim any interest in the estate of thedeceased—An interest in the estate of the testator means an interest throughthe testator.

Md MakbulHossain vs Sree Sibu Pada Dam 40 DLR 120.

Section 283—

Anobjector's application, when he appears in response to the citations undersection 283, can only be disposed of by the District Judge and not by theDistrict Delegate.

Kalpana DasGupta vs Bangladesh 40 DLR 373.

Section 283—

Therespondent who has been allegedly in possession of the disputed propertiesthrough a contract is not entitled to citation at all.

Shubra NandiMajumder vs Begum Mahmuda Khatoon 42 DLR (AD) 133.

Section 283 Clause (c)—

If a personclaims independently of the Will he cannot be said to have interest in theprobate case.

ChandiProshad Dhar vs Bibha Rani Dhar & ors. 50 DLR 355.

Section 286—

Explanation—Meaningof "Contention". In the Explanation to section 286 it has beenprovided that "contention" means the appearance of anyone in personor by his recognised agent or by a pleader duly appointed to act on his behalf,to oppose the proceeding."

Kalpana DasGupta vs Bangladesh 40 DLR 373.

Sections 286 & 288—

A DistrictDelegate shall cease his hands under section 286 as soon as a contention as tothe grant of probate or letters of administration is raised in any case and thematter shall be returned to the District Judge in — accordance with theprovisions of section 288.

HaripadaGhose and another vs Gopal Chandra Ghose 47 DLR (AD) 164.

Section 288—

Authority ofthe District Delegate in disposing of cases in which there is contention.

Section 288of the Succession Act provides, inter alia, that in every case in which thereis ·contention, the petition and documents shall be returned to the applicantfor presentation to the District Judge. Alternatively the District Delegate isauthorised to impound the same for the purposes of justice and shall send thesame to the District Judge.

Kalpana DasGupta vs Bangladesh 40 DLR 373.

Sections 290, 295 & 299—

Every orderincluding an interlocutory order passed by a District Judge in a Probateproceeding is subject to appeal and as such this revisional application isincompetent.

Anuj Choudhury& others vs Sailendra Kishore Chowdhury and others 51 DLR 460.

Section 371—

The DistrictJudge will grant a certificate under this section when the deceased ordinarilyresided within his jurisdiction. In a case where the deceased has no fixedplace of residence the District Judge will grant the certificate if· any partof the property of the deceased could be found within his jurisdiction.

Ummida Khanvs Salahuddin Khan 37 DLR 117.

Section 371—

Section 371states only "ordinarily resided" and not permanently resided.

For aDistrict Judge to entertain a petition under section 371 of the Succession Act,the deceased ought to have ordinarily resided within the local jurisdiction ofthe District Judge granting certificate at the time of his death. The termresidence, as it appears in this section, was not qualified by the wordpermanent residence. It only speaks of ordinarily resident. A person may have apermanent residence at Dhaka but yet may ordinarily be a resident of some otherplace at the time of his death, where he might have gone before his death forthe purpose of his business and was residing there.

Ummida Khanvs Salahuddin Khan 37 DLR 117.

Section 372—

The Court isalways empowered to grant a succession certificate to a minor on his applicationthrough his mother.

MuhaiminulHasan Khan vs Md Nurul Islam Khan and others 54 DLR 156.

Section 372—

Havingconsidered the definition of 'debt' and the decided cases where ornaments werelying with the Bank could be considered as 'debt', and as such the ornamentslying with the Bangladesh Bank being recovered from Ms H Dey Jewellers are a'debt' which could be claimed by its owners.

Aloke NathDey vs Government of Bangladesh represented by the Deputy Commissioner 56 DLR(AD) 66.

Section 372—

A successioncertificate could only be granted in presence of or with the knowledge of themembers of the family or in their absence other near relatives left by thedeceased.

Prodip KumarDutta & anr vs Mira Rani Dutta and another 56 DLR 571.

Section 383—

A personseeking revocation of certificate granted by a competent Court must have someinterest, immediate or remote, in the property of the testator.

ArabindaSarker vs Bimalendu Bhowmik 48 DLR (AD) 182.

Section 388(2)—

Where anyCourt inferior to a District Judge is vested to exercise function of DistrictJudge such inferior Court is to be deemed ·a District Judge but an appeal fromhis order shall lie to the District Judge.

Dudu Miah vsSikandar Ali 46 DLR 386.

Suppression of Immoral Traffic Act, 1933

Suppressionof Immoral Traffic Act [VI of 1933]

Section 4(1)—

Prostitutesinitially get themselves enrolled with the local administration expressing thedesire to be prostitutes and get themselves confined to the brothels and getthe required protection to continue in profession by the local administrationwhereby they are maintaining their livelihood which the State in the absence ofany prohibitory legislation has a duty to protect and a citizen has the rightto enforce that right Article 11 providing for dignity of human person though notenforceable but the sex—workers as citizens have enforceable right underArticles 31 and 32.

BangladeshSociety for the Enforcement of Human Rights (BSEHR) and others vs Government ofBangladesh and others 53 DLR 1.

Supreme Court

SupremeCourt

High CourtDivision is an integral part of the Supreme Court having plenary power—Parliamentbeing a legislative body is devoid of constituent power to amend the provisionsof the Constitution in derogation of the basic conception so as to destroy theConstitution.

Anwar HussainChowdhury vs Bangladesh 41 DLR (AD) 165.

—Function ofthe Supreme Court—Court to interpret law to make its decision to be binding onthe subordinate Courts—But Supreme Court cannot usurp the powers and functionsof the legislature in making law or those of the Administration or otherauthorities—If the Court deviates from the same, it will be judicial despotismof the worst type—The Court is not above law or the Constitution.

EhsanulHoque vs GM Agrani Bank 42 DLR 60.

—SupremeCourt's observations on the malversation of the District Administration. Wherethe country is governed by a constitutional government, minimum norm that isexpected of the persons participating in the Administration is to keep harmonyin their dealings inter se.

Aftabuddinvs Mahfuzus Sobhan 42 DLR (AD) 78.

Supreme Court Rules

SupremeCourt Rules

Rule 20—

"Errorapparent on the face of the record" cannot be said to be so where alengthy argument is advanced to explain such expressions as is argued by thepetitioner.

ZenithPackages Limited vs Member Labour Appellate Tribunal Dhaka and others 52 DLR(AD) 160.

Rule 26—

Provisionsof Order XLVII, rule 1 CPC and rule 26 of the Supreme Court Rules areapplicable in case of review by the Appellate Division of the Supreme Court.Rule 26 of the Supreme Court Rules provides 30 days for filing a reviewpetition.

MahbuburRahman Sikder vs Mujibur Rahman Sikder 37 DLR (AD) 145.

Rule 26—

A wrongdecision on interpretation of certain provision of law or principle laid downin a decision relied upon by a court are no grounds for review.

ZenithPackages Limited vs Member Labour Appellate Tribunal Dhaka and others 52 DLR(AD) 160.

Surplus Public Servants Absorption Ordinance, 1985

SurplusPublic Servants Absorption Ordinance, 1985

Sections 2(e), 4 & 5(2)—

Abolition ofthe post in the BCS (Trade) Cadre were made and the petitioner and others weredeclared surplus· with the concurrence of the Prime Minister. As soon as thePrime Minister, the head of the Government, has approved the proposal of theone Ministry the other Ministries or Departments will be bound to obey it.

MatiurRahman (Md) vs Bangladesh, through the Secretary, Ministry of Establishment ofthe People's Republic of Bangladesh 50 DLR 357.

Sections 2(e) & 5—

The tenureof Temporary Taxes Appellate Tribunal Benches created only for 2 years todispose of pending cases quickly expired on 14-1-92. These were temporaryoffices and the incumbents thereof held temporary posts for a temporary period.The question of abolition of their respective posts does not arise. They standextinct owing to lapse of time.

NationalBoard of Revenue vs Nasrin Banu and 5 others 48 DLR (AD) 171.

Section 6—

The pastservice can only be counted on absorption in equivalent post towards seniority.When the petitioner appellant was absorbed in a higher post i.e. the post ofInspector of Taxes, he is not entitled to count his past service of UpperDivision Assistant towards his seniority in the post of Inspector of Taxes.

AFB JahanMia (Md) vs Chairman, National Board of Revenue and others 49 DLR (AD) 122.

Teachers and Non-teaching Staff of Nationalised High School & Colleges

Teachers andNon-teaching Staff of Nationalised High School (Directorate of Secondary andHigher Education) Absorption Rules, 1983

Rule 2(h)—

Rationale ofabsorption of teacher in a nationalised school—The decision to absorb onlythose teachers of the school who were appointed before the date of declarationto nationalise the school, in consideration of the financial liability of theGovernment, is rational, reasonable and within the Government's authority. Theembargo of date in this regard cannot be said to be arbitrary and whimsical andthe Government in the circumstances of the case cannot be compelled to appointthe petitioner as a teacher of the nationalised school.

Nikhil KumarSarker vs Bangladesh 44 DLR 67.

Teachers andNon—teaching Staff of Nationalised Colleges (Directorate of Public Instruction)Absorption Rules, 1981

TheGovernment having itself decided to remove the anomaly in the matter ofabsorption of teachers like the respondent in the nationalised colleges and itnever having been contended that the Government changed its decision for anygood reason, the Court will be justified in holding that the Government isrequired by law to implement its· own decision.

Bangladeshvs AHM Amir Hossain 48 DLR (AD) 75.

Telegraph Act, 1885

TelegraphAct [XIII of 1885]

Section 7A—

The arreardues of the telephone bill can be legally realised under section 7(a) of thesaid Act, giving up going to the PDR Act.

MirzaAnwarul Islam alias Tanu vs State 52 DLR 108.

The Dhaka University Order, 1973

DhakaUniversity Order [PO No. XI of 1973]

Articles4(m) and 52–

"Misconduct"and "breach of discipline"–lts meaning–The Dhaka University Order,1973 (PO No. II of 1973) is silent about the meaning of "misconduct"and "breach of discipline"–Clause (m) of Article 4 lays down thepowers of the university regarding maintenance of discipline among thestudents.

FarzanaHaque vs University of Dhaka 42 DLR 262.

Article12(1)–

Therebeing no legal sanction for counting votes away from the polling centres thewhole election process is vitiated.

GiasuddinAhmed Chowdhury alias Gias Kamal Chowdhury and others vs Dhaka University andothers 52 DLR 650.

Article12(3)–

Sections46(1)(i)(e), (16) & (17) of the First Statutes. By giving instructions tothe Presiding Officers to put the ballots in sealed packets immediately afterthe poll and come to Dhaka for counting the votes, the election authority hasdeprived the presiding officers of their 'full power' to dispose of ' all thepoints raised in the course of the polling.'

GiasuddinAhmed Chowdhury alias Gias Kamal Chowdhury and others vs Dhaka University andothers 52 DLR 650.

Articles 19,23(1) & 52(1)–

TheSyndicate being an executive authority of the University made nomination forSelection Board with lawful authority. The University Order having providedremedy by way of appeal from the Syndicate's order, the writ petition is hit bythe doctrine of exhaustion.

Prof NurulAmin Bepari vs Vice–Chancellor & ors 50 DLR 405.

Articles 32 &52–

TheDhaka University Order, 1973 in Article 52 provides for an appeal against anyorder of any officer or authority of the University affecting any person orclass of persons in the University which may be made by petition to theChancellor. But the petitioners in the instant case did not prefer any appealto the Chancellor. As such the Writ is not maintainable.

MoniruddinAbedullah and others vs Controller of Examinations, Dhaka University and others50 DLR 567.

Section46(2) and (3) of the First Statutes –

Bystopping the enrolment of graduates arbitrarily after 4–12–97 many of those whowould have been entitled to vote have been deprived of their right to cast voteand this materially affected the election result.

GiasuddinAhmed Chowdhury alias Gias Kamal Chowdhury and others vs Dhaka University andothers 52 DLR 650.

Section46(3) of the First Statutes–

Beingan administrative action not authorised by law, the election held in the year1999, instead of being held in 1998, has become a nullity.

GiasuddinAhmed Chowdhury alias Gias Kamal Chowdhury and others vs Dhaka University andothers 52 DLR 650

Article 52–

Discretionarypowers vested in this Court under Article 102 of the Constitution will not beexercised if an alternative remedy (of appeal) is available and if theaggrieved person has not tried to avail of the said remedy before approachingthis Court, we are of the opinion that the principle cannot be applied to thiscase–An alternative remedy cannot be as efficacious as a writ in the peculiarfacts of the case.

FarzanaHaque vs University of Dhaka 42 DLR 262.

Article 52–

TheDean of the Faculty of Medicine being the officer of the University within themeaning of Article 52 of President's Order 11 of 1973, the remedy providedunder Article 52 is equally efficacious as it provides for enquiry by aCommission and as such the writ petition is not maintainable.

Dr ProfessorMA Hadi vs Bangladesh and others 50 DLR 218.

DhakaUniversity (amendment) Ordinance, 1986

Rule 6 ofChapter VII of the Rules and Regulations–

Inthe absence of any specific provision the Vice–Chancellor was competent toadopt any means including formation of an Enquiry Committee in order to formhis opinion required for application of Rule 6 of Chapter VII of the UniversityOrdinances and Regulations. The only condition is that the means were just. Itcannot be said that appointment of an Enquiry Committee was not just means. We,therefore, hold that by appointing the Enquiry Committee and by acting on itsfindings the Vice–Chancellor did not commit any illegality.

FarzanaHaque vs University of Dhaka 42 DLR 262.

Tobacco-related Goods Marketing (Control) Act, 1988

Tobacco-relatedGoods Marketing (Control) Act [XLV of 1988]

Section 3—

???????? ??????? ????? (?????????) ??? is designed to control the advertisement and marketing of tobaccobased—products by way of written warning that smoking is dangerous for health thus impliedly prohibitingadvertisement in any form.

ProfessorNurul Islam and others vs Government of the People's Republic of Bangladesh& ors 52 DLR 413.

Town Improvement Act, 1953

TownImprovement Act [XIII of 1953]

Violation ofbuilding rules and the sanctioned plan punishable—So also violation ofneighbour’s interest—In the present case the duty of the defendants is to keepvacant space or to make constructions according to the Building Rules and thebuilding plan sanctioned by authority. Violation of the Building Rule and thesanctioned plan are punishable under the Town Improvement Act. Similarly, ifthese violations touch the interest of the neighbours, they are also actionableat the instance of the neighbours.

A Hakim Khanvs Sufia Khatun 39 DLR 275.

—Failure tocomply with the Building Rules as well as with the plan sanctioned, is an infringementamounting to tort.

A Hakim Khanvs Sufia Khatun 39 DLR 275.

Section 2(t)—

It is anobligation of the RAJUK to provide parks, open spaces, play grounds or similaramenities. It cannot deprive the residents of an improvement scheme from suchfacilities on the plea of providing residential plots to the growing number oftown dwellers.

MohsinulIslam vs Rajdhani Unnayan Kartripakkha and others 52 DLR 12.

Section 2(h)—

Conversionof parks and open spaces enjoyed by allottees of a plan township cannot beconverted as residential plots.

RajdhaniUnnayan Kartripakhya and another vs Mohsinul Islam and another 53 DLR (AD) 79.

Sections 22 & 23 (as amended), 29, 79(2), 93A & 93B—

Non—paymentof compensation within one year from the date of decision of the Government foracquisition of land as contemplatedunder section 12of1982 Ordinance does not render such land liable to bereleased in that section 12 is not applicable to the facts of the instant caseswhich were started long before the Ordinance came into force in view of theprovision of amended section 79 of the 1953 Act as no retrospectivity can beread into section 12 of the 1982 Ordinance.

Jamir Ali(Md) and others vs Secretary, Ministry of Land & others 52 DLR (AD) 176.

Section 23—

Unless adifferent intention appears in the repealing Act the repeal of any enactmentshall not affect any investigation, legal proceeding or remedy as if therepealing Act had not been passed.

Jamir Ali(Md) and others vs Secretary, Ministry of Land and others 52 DLR 125.

Section 93A & 93A (repealed)—

In spite ofrepeal of sections 93A and 93B of the Act the pending acquisition of thedisputed land shall be continued under the aforesaid provisions as if thosehave not been repealed and the provision of section 12 or other provisions ofAcquisition and Requisition of Immoveable Property Ordinance shall not apply tothe acquisition proceedings started under section 93A of the Act.

Jamir Ali(Md) and others vs Secretary, Ministry of Land and others 52 DLR 125.

Sections 52 & 74—

The writpetitioner allottee of the adjacent plot has no legal right to resist creationof new plot or sub—plots and alloting those to others. The writ petition is badfor defect of parties as the allottees have not been made parties to thepetition.

Syed AbdurRahim vs Secretary, Ministry of Works, Government of Bangladesh and others 53DLR (AD) 106.

Section 93A(3)—

The landbeing still under requisition there cannot be a valid ground for declaring theproposed allotment illegal only because the land has been kept unutilized for along time without issuing acquisition process.

Sadequeuddin Ahmed vs RAJUK 46 DLR 205.

Section 93A(3)—

The land inquestion having been requisitioned for the purpose of acquisition andpossession delivered to the requiring body, in spite of the fact that noGazette Notification has yet been published vesting title in the land, may usethe property as may appear to it to be expedient.

Jamir Ali(Md) and others vs Secretary, Ministry of Land 52 DLR I 25.

Section 100(1)—

Undersection 101(1) of the Town Improvement Act, 1953 it is the absolute right ofthe RAJUK to deal with the property acquired and they have sufficient authorityto release the land to the owners.

Bhawal RajEstate Court of Wards vs Rajdhani Unnayan Kartripakkha and another 51 DLR 462.

Trade Mark Rules

Trade MarkRules

Rule 23—

A notice tothe concerned applicant by the Registrar should be impliedly read in therelevant section of the Act and rule of the Trade Marks Rules, 1963 framedthereunder to avoid abuse of power and for the sake of public interest.

Solaiman Ali(Md) vs Md Abul Hussain and another 54 DLR 294.

Rules 33(1)—

Sub-section15(4) if read in conjunction with Rule 33(1) it becomes clear that theopposition must be deemed to have been abandoned. In the present case there isnoncompliance with the provision of Rule 33(1) and the Registrar had the"discretion to treat the matter as abandoned.

AbdulMotaleb and others vs Aftab Miah and another 56 DLR 145.

Trade Marks Act, 1940

Trade MarksAct [V of 1940]

Word anddevice 'Globe' were declared common to trade by Pakistan authority.

Abdul Quayumvs Taj Iron Industry 38 DLR 249.

Section 8—

If mere useof the trade mark from an earlier date by the respondent were to satisfy therequirements of section 8 of the Act without looking into the volume of goodssold for a number of years by the respondent then there was no need to have hismark registered at all.

BallySchutrabriken Ag, Switzerland vs Hosnara Begum 52 DLR 546.

Section 8—

In decidingan objection the Registrar cannot go beyond the contents of the objection. Hedid not commit illegality in rejecting the objection application as the groundstaken in the objection are not tenable in law.

BallySchutrabriken Ag, Switzerland vs Hosnara Begum 52 DLR 546.

Section 8—

For thepurpose of registration under the Act, the Registrar should ordinarily considerthe user in this country to which the Act applies.

BallySchutrabriken Ag, Switzerland vs Hosnara Begum 52 DLR 546.

Section 8—

Theregistrar may, consider the conduct of the applicant, the manner in which hehas used the mark and all the circumstances in deciding whether the mark is onewhich is not to be protected.

Anil KumarGhosh vs Shamir Kumar Ghosh 54 DLR 273.

Section 8(a)—

Registrationof their Trade Mark in foreign countries without the user of the same inBangladesh is of no relevance.

BallySchutrabriken Ag, Switzerland vs Hosnara Begum 52 DLR 546.

Section 8(a)—

Non user ofthe Trade Markin Bangladesh for a statutory period disentitles one to raise anyobjection whatsoever under this section.

BallySchutrabriken Ag, Switzerland vs Hosnara Begum 52 DLR 546.

Section 16—

Forthepurpose of this section it is sufficient to show that two marks are so alikethat they are likely to deceive and cause confusion.

Anil KumarGhosh vs Shamir Kumar Ghosh 54 DLR 273.

Section 10 —

This sectionapplies in cases where a party has established that its trademark has beenregistered for description of the· goods and the other party has applied forregistration of the same trademark for the goods of same description.

Anil KumarGhosh vs Shamir Kumar Ghosh 54 DLR 273.

Sections 10 & 46—

Registrationof identical or similar trade mark—Such registration in favour of twopersons—About the propriety of such registration the Register has to satisfyhimself and he may put conditions and limitations as he may think fit toimpose. In permitting identical trademarks he has to provide for some ways anddevices for protecting the interest of competing proprietors and the interestof the public in general to save them from possible deception and confusion. Inthe absence of fraud, there could be no direction under section 46 of the Actwith regard to registration of trade mark.

BCIC vsSattar Match Works 44 DLR (AD) 208.

Sections 10, 46 & 72—

Honest userof a trade mark for a long time—Registrar fails to exercise jurisdiction todispose of the petition for registration of the trade mark—Petitioner SattarMatch Works acquired a right to use the trade mark 'Cock' and got summaryregistration for the same by concurrent . and honest user for about threedecades along with Ujala Match Factory. In order to do complete and substantialjustice the Court in exercise of its inherent discretionary jurisdiction givesdirection to the Registrar of Trade Marks to grant summary registration for thetrade mark without prejudice to the Ujala Match Factory for its concurrent useof the same trade mark 'Cock'.

Sattar MatchWorks vs BCIC 43 DLR 532.

Section 10(1)—

Thepre-condition for resorting to section 10(1) is that the objector must be aproprietor of the registered trade mark otherwise he cannot raise any objectionunder section 10(1) of the Act.

Bally SchutrabrikenAg, Switzerland vs Hosnara Begum 52 DLR 546

Section 10(3)—

If separateapplications have been made by different persons in respect of the trade markwhich are identical and closely resemble each other in respect of the samegoods or description of goods the Registrar is authorised to refuse to registerany of them and leave the parties to get their rights determined by a CivilCourt.

BallySchutrabriken Ag, Switzerland vs Hosnara Begum 52 DLR 546.

Section 13—

Trademarksgranted in Pakistan cancelled by PO 9 of 1972.

Abdul Quayumvs Taj Iron Industry 38 DLR 249.

Section 13—

Since 1972till 1979 the mark was not common to trade in Bangladesh.

Abdul Quayumvs Taj Iron Industry 38 DLR 249.

Section 13—

The trademark 'Globe' which the respondent obtained in 1974 without objection from anyquarter. Now, therefore, it cannot be declared as a mark common to trade.

Abdul Quayumvs Taj Iron Industry 38 DLR 249.

Sections 15(4)—

Sub-section15( 4) if read in conjunction with Rufo 33(1) it becomes clear that theopposition must be deemed to have been abandoned. In the present case there isnoncompliance with the provision of Rule 33(1) and the Registrar had thediscretion to treat the matter as abandoned.

AbdulMotaleb and others vs Aftab Miah and another 56 DLR 145.

Section 21—

In trademark matters it is now necessary to go into the question of 'comparablestrength' of the cases of either party, apart from balance of convenience.

Hamza RubberIndustries vs Golam Dastagir Gazi 53 DLR 430

Section 21—

If theoffending Trade Mark of the defendants infringes the Trade Mark rights of theplaintiff then no amount of monetary consideration can come in the way torestrain the defendants from using a Trade Mark even nearly resembling that ofthe plaintiff.

Hamza RubberIndustries vs Golam Dastagir Gazi 53 DLR 430

Section 25—

lmplicationof section 25 appears to be that it is only the person who obtainedregistration of · trade mark at a subsequent date cannot maintain an action forinfringement against a person who got the registration earlier, and in theentire statute there is no such restriction upon the person who obtainedregistration earlier to file action for infringement against a person who getsthe registration at a subsequent date.

Abdul MannanMiah vs Md Salaiman Miah 54 DLR 394.

Section 37—

Rectification—"StateExpress" is a world famous trade mark and if the appellant is allowed touse a part of the mark that would give rise to confusion among the members ofthe public—It also infringes the right of the registered proprietor of thetrade mark.

VirginiaTobacco Company (BD) Ltd vs Registrar of Trade Marks and another 56 DLR 362.

Sections 37 & 4—

Rectificationof Trade Mark—Maintainability of application for rectification—Question ofright to use Trade Mark later applied for—The petitioner is competent to filesuch an application before the Court as the petitioner company is aggrieved bythe very granting of certificate in favour of the respondent. The preliminaryobjection against the application is, therefore, not acceptable. It was foundthat the respondent had no bonafide intention to use the Trade Mark 'Capri'although he declared that since 1983 he had been using the trade name 'Capri'for his toilet soap. The impugned registration leaving aside the application ofthe petitioner Company, though made later in 1987, cannot be sustainable whenthe company had reasonable and legal grounds to apply.

Haque andCompany Ltd. vs Mis Western Soap Factory 43 DLR 304.

Sections 37, 46 & 72—

The questionas to whether the petitioner has been an earlier user of the trade mark cannotbe gone into in an application under section 46 of the Trade Marks Act 1940 astheir rights to the trade mark has been dealt with by the office of theRegistrar by his order dated 31-3-1983 without any appeal by the petitioneragainst the said order.

KohinoorChemical Co Bangladesh Ltd vs Kohinoor Chemical Co Ltd 48 DLR 376.

Section 4—

In decidingthe question of similarity between the two marks the test is whether a memberof the public is at risk to be confused or deceived. Actual confusion ordeception is not necessary.

Jamal UddinAhmed vs Abdul Haque and another 55 DLR 102.

Sections 46 & 10—

Registrationof identical or similar trademark—Such registration in favour of twopersons—About the propriety of such registration the Registrar has to satisfyhimself and he may put conditions and limitations as he may think fit toimpose. In permitting identical trademarks he has to provide for some ways anddevices for protecting the interest of competing proprietors and the interestof the public in general to save them .from possible deception and confusion.In the absence of fraud, there could be no direction under section 46 of theAct with regard to registration of trade mark.

BCIC vsSattar Match Works 44 DLR (AD) 208.

Section 46(2)—

There was nolong user of the respondent's product in this country and the people here arealso not acquainted with the product and the respondents are also not"persons aggrieved" to bring .any dispute.

Samah RazorBlades Industries Ltd vs Supermax International Pvt Ltd and another 51 DLR 237.

Section 7—

Theregistration of the latter company is provisional and it has started marketingand selling its product "Oralsaline" from the last part of 1994. Butthe respondent started marketing and selling its product Orsaline from 1984. Soit is a clear case of "passing off".

UniversalPharmaceutical Ltd and another vs Social Marketing Company 50 DLR 548.

Section 7—

The pendencyof an application for registration before the Registrar of Trade Marks or eventhe. granting of a provisional certificate of registration of the mark does notdebar a civil Court in a suit for infringement of a trade mark from passing anorder of temporary injunction against the use of the mark where there is thelikelihood that the mark would deceive or cause confusion in the minds ofunwary purchasers.

Abdul MannanMiah vs Md Salaiman Miah 54 DLR 394.

Trade Marks (Invalidation & Summary Registration) Order, 1973

Trade Marks(Invalidation & Summary Registration) Order [PO XIX of 1973]

Article 3—

All TradeMarks registered in Pakistan were deemed not to have been registered inBangladesh.

Md AbdulQuayum vs Taj Iron and Metal Industries Ltd 38 DLR 249.

Article 3—

From thematerials on record it appears that although on the 1st of June, 1971 theappellant applied for renewal of their trade mark in Pakistan but after theemergence of Bangladesh never applied for summary Registration under thePresident's Order it must be deemed in law that the trade mark was never registeredin Bangladesh.

BallySchutrabriken Ag, Switzerland vs Hosnara Begum 52 DLR 546.

Article 6 —

The trademark "BALLY" of the appellant was registered in Pakistan. After theemergence of Bangladesh the appellant had neither applied for nor got theirtrade mark summarily registered under Article 6 of President's Order and assuch it must be deemed not to have been registered in Bangladesh at any pointof time.

BallySchutrabriken Ag, Switzerland vs Hosnara Begum 52 DLR 546.

Trade Organisation Ordinance & Rules, 1961

TradeOrganisation Ordinance [XLV of 1961]

Scope of theOrdinance and Rules described—Executive Govt's functions relating to TradeOrganisation Ordinance—Explained. Executive Government under the said Ordinancewould have power to pass all such orders and directions as would be requiredunder that law aimed at regulating those organisations and their internaladministrative affairs.

DCCI vsBangladesh 39 DLR 145.

Section 3—

Issuance oflicence in favour of respondent indicates rejection of the application of thepetitioner. Non communication of such rejection has prejudiced the petitioneras it could not prefer appeal. The granting of registration and issuance oflicence in favour of respondent cannot be said to be bona fide or in accordancewith the provisions of law and there is violation of principle of naturaljustice.

Rice MillOwners Association vs Government of Bangladesh and others 54 DLR 325.

Section 9—

All acts andproceedings of trade organisations are subject to the control of the Director,Trade Organisations. This statutory body is given general regulatory power ofthe internal affairs of trade organisations. Subsection (f) section 9specifically gives power to the OTO to cancel, suspend or modify any resolutionadopted or any decision taken, by the general body or its Executive Committeefor its not being in conformity with the provisions of the Memorandum andArticles of Association or any Rules, Regulation made thereunder.

KamaluddinAhmed vs Director of Trade Organisations and others 52 DLR 659.

Section 9—

Abul KhairMorselin (Md) vs Bangladesh and others 53 DLR 179.

Section 9(2)(d) & 9(2)(i)(ii)—

Proxy formssupplied initially can validly be used in subsequent election.

A Ghafur vsGovt. of Bangladesh 38 DLR 422.

Section 9(2)(d) & 9(2)(i)(ii)—

Federationof Bangladesh Chambers of Commerce and Industry is both a Trade Organisation aswell as a Limited Company incorporated under the Companies Act; such being theposition the provision for holding annual election as has been provided in theFederation's articles of association must be followed —Hence the annual meetingof the Federation held in accordance with the provisions made in theFederation's Articles of Association was in order.

A Ghafar vsGovt of Bangladesh 38 DLR 422.

Section 9(2)(d) & 9(2)(i)(ii)—

Proxy formssupplied initially in pursuance of the first notice of election can validly beused when the election could not be held in the election that took place lateron.

A Ghofur vsGovt of Bangladesh 38 DLR 422.

Section 9(2)(d) & 9(2)(i)(ii)—

An annualmeeting interrupted by an adjournment, regardless of the adjournment continuesto be the annual meeting.

A Ghafur vsGovt of Bangladesh 38 DLR 422.

Section 12—

Section 12of the Trade Organisation Ordinance has not completely ousted the jurisdictionof the Court. Before coming to the Court the petitioners are to refer thematter to arbitration as provided in section 12 of the Ordinance.

IbrahimCotton Mills Ltd and others vs Chittagong Chamber of Commerce and Industry andothers 51 DLR 538.

Section 12—

Theapplication under section 43 of the Companies Act for the rectification of theMembers Register is held to be not maintainable as the· said matter has notbeen earlier referred to the Arbitration. Tribunal as provided in section 12 ofthe Ordinance and/or as stipulated in Article 66 of the Articles of Associationof the Chamber of Commerce.

IbrahimCotton Mills Ltd and others vs Chittagong Chamber of Commerce and Industry andothers 51 DLR 538.

Section 12—

Theaggrieved member of the trade organisation must exhaust his remedies by way ofreference to an Arbitration Tribunal before invoking the aid of the CivilCourt.

Shaikh AnsarAli & others vs Md Tofazzal Hossain and others 55 DLR 211.

TradeOrganisation Rules, 1961

Rules 3 & 10—

Rice MillOwners Association vs Government of Bangladesh and others 54 DLR 325.

Trading Corporation of Bangladesh, 1972

TradingCorporation of Bangladesh [PO No. 68 of 1972]

Articles 24 & 25—

Under theArticles 24 and 25 the Government and the Board of Directors are authorised tomake rules. Upon the repeal of the Government Servants (Discipline and Appeal)Rules of 1976, the Rules of 1984 are being followed.

MA Hai &others vs TCB 40 DLR I 09.

Articles 24 & 25—

The 'Corporationis competent to institute proceedings against its officers even though no Ruleand Regulations have been framed under Articles 24 and 25— Interpretation ofthe provisions of Articles 24 and 25—Absence of Rules, no consequences willflow from it absence.

MA Hai &others vs TCB 40 DLR 109.

Articles 24 & 25—

Interpretationof Rule 7(i)(ii) of the Rules of 1984—Acceptance of the contentions of thepetitioners will amount to rulemaking on the part of the Court—A legal fictioncan be created by a statute and not by the court by interpreting a Rule.

MA Hai &others vs TCB 40 DLR 109.

Transfer of Agricultural Land Act, 1951

Transfer ofAgricultural Land Act [XXXIII of 1951]

Section 3—

Thestatutory provisions are prospective, unless there is clear indication in theAct itself that they are retrospective. The plaintiffs cannot be disentitledfrom the suit land on the basis of section 3 of the Act as they alreadyacquired title before the Act came into operation.

Badsha (Md)Miah and others vs Soleman Nessa Bibi and another 43 DLR 646.

Transfer of Immovable Property (Temporary Provisions) Order, 1972

Transfer ofImmovable Property (Temporary Provisions) Order [PO No. 142 of 1972]

Article 4—

Under theMuslim Law an oral heba is a valid mode of transfer which does not come underthe scope of President's Order No.142 of 1972 as can be found from the languageof its article 4. Furthermore, a deed of gift executed by a Muslim is not aninstrument affecting, creating or making the gift, but is a mere piece ofevidence and does not require registration within the meaning of section 17 ofthe Registration Act and that even the affidavit, Ext.12, cannot be consideredas a document of transfer.

Bangladeshrepresented by the Secretary, Ministry of Works, Government of People'sRepublic of Bangladesh vs Sultana Suraiya Akhter 48 DLR 389.

Article 6—

In thepresent suit Government is not a necessary party as it does not involve anyquestion of title relating to a suit for specific performance of contract.

Laxmi KantaRoy vs Upazila Nirbahi Officer 46 DLR 136.

Transfer of Property Act, 1882 [Section 1 - 105]

Transfer ofProperty Act [IV of 1882]

Sections 2(e) & 6—

A deed ofrelease being a registered document with promise to compensate in case thepromisee suffers any loss is a kind of contrivance that comes within the broadspectrum of definitions of transfer under section 2, if not section 6 of the TPAct.

Bangladeshvs Aziz Molla 44 DLR (AD) 90.

Sections 3 & 130—

Havingconsidered the definition of 'debt' and the decided cases where ornaments werelying with the Bank could be considered as 'debt', and as such the ornamentslying with the Bangladesh Bank being recovered from Ms H Dey Jewelers are a'debt' which could be claimed by its owners.

Aloke NathDey vs Government of Bangladesh represented by the Deputy Commissioner 56 DLR(AD) 66.

Section 3(g)—

Beforecancellation of the lease deed it was required of the Government to send a showcause notice to the petitioner to his changed address.

RahmaniaAgencies Ltd vs Bangladesh 42 DLR 363.

Sections 6, 10, 11 & 40—

Right ofrepurchase is not transferable. Ekrarnama is not a deed of conveyance—It is atbest an agreement between the vendor and the vendee and by itself it does notcreate any interest in land. The restriction created in ekramama is quitevalid. Unless the interest created by any transfer is absolute, section 11Transfer of Property Act shall have no application.

Asim Ali vsBadaruddin 46 DLR 96.

Section 14—

Though thepetitioner's covenant was not personal and it could be enforced by the heirs,it is hit by the rule against perpetuity inasmuch as no specific time wasmentioned within which repayment of consideration was to be made.

Chandra KantaMistri vs. Sailendra Nath Sikder 49 DLR 514.

Section 41—

Purchaserfrom a benamder is protected under section 41 of the Transfer of Property Actprovided he satisfies the conditions laid down in the proviso to the saidsection—The real owner can avoid the transfer by his benamder provided noreasonable care was taken by the transferee.

Sultan Ahmedvs Waziullah 39 DLR 329.

Section 41—

The sectionis an exception to the ordinary rule that the transferor cannot convey agreater title to the transferee than he himself has. If anyone seeks protectioneither under section 41 of the Transfer of Property Act or under section 115 ofthe Evidence Act, he must prove the facts entitling him to the benefits undereither of the laws.

Wahida Begumvs Tajul Islam 52 DLR 491.

Section 43—

Where aperson having partial interest in certain property, transfers a larger interestand subsequently acquired that interest, in that case the provision of section43 of the Act applies and the transferee is entitled to get interest soacquired.

Omar AliSheikh vs Shamsul Alam Mridha and others 55 DLR 257.

Section 48—

Title inland—Whether subsequent purchaser in possession from a date prior to the dateof purchase of the prior purchaser in part performance of agreement for salewill acquire title. Since earlier kabalas take precedence over the subsequentkabalas the plaintiffs have not acquired any right, title and interest in thesuit land on the basis of their subsequent sale deeds in respect of propertiesalready sold to the defendant Nos. 1 and 2 by the same vendors. There is noprovision of law that title on the basis of subsequent sale deeds will takeeffect from the date of agreement .for sale if possession is delivered in partperformance of the agreement.

Abdus SamadKhan vs Wazed Ali Fakir 44 DLR 495.

Section 48—

Bonafidepurchaser for value without notice—The doctrine of bonafide purchaser for valuewithout notice is applicable in a case when the plaintiff wants to enforce theagreement for sale not only against the vendor but also against the transfereeof the vendor's title arising subsequent to the plaintiffs agreement for sale.Plaintiffs suit is not such a suit but is a suit for simple declaration oftitle in the suit land and, as such, the said doctrine is not applicable in thepresent case. Court is to decide the case on the basis of the pleadings of theparties and evidence on record and not· on the basis of its own assumptionmaking out a third case.

Abdus SamadKhan vs Wazed Ali Fakir 44 DLR 495.

Section 52—

Doctrine oflis pendens envisaged under 52 TP Act not applicable to preemption matter,since with the reconveyance of the land in pre-emption proceeding to theoriginal owner the lis pendens doctrine loses its relevancy.

Md Abbas Alivs Md Osman Ali 37 DLR 324.

Section 52—

Since thepetitioners purchased the properties during the pendency of the suit they willbe subjected to the result of the suit.

MoktharMasum Abedin and others vs Nironjan Kumar Mondol and others 50 DLR 341.

Section 53A—

RespondentNo. l claimed to pre-empt the sale on the ground that he became a co-sharer byvirtue of a decree which he obtained in his suit for specific performance ofcontract.

Held : As he did not obtain a kabala in pursuance ofa decree, his claimas a co-sharer is without any basis.

MalekaKhatun vs Abid Ali 39 DLR (AD) 234.

Section 52—

Lispendens—Mutation proceeding was initiated after the filing of the pre-emptionapplication hit by the doctrine of lis pendens.

M Banik vsNitya Ranjan 39 DLR (AD) 75.

Section 52—

Lis pendens—Questionof bar of appeal— The doctrine of Lis pendens does not make alienations madeduring pendency of a suit void but only that such alienation will not affectthe rights of other parties to the suit. It means that the purchaser pendentelite is bound by the result of the litigation. In the instant case, thepetitioner having alleged that he had purchased the suit land and the decreepassed in the suit adversely affected his interest the District Judge hascommitted an error of law in not according permission to the petitioner to filethe appeal.

BangladeshLeaf Tobacco Company Ltd. vs Md Abdul Mannan 43 DLR 7.

Section 52—

Lis pendensdoes not make a deed invalid, it only makes the right dependent on result ofthe suit.

Anil Ranjan Ghosh and another vs. Assistant Custodian of Vestedand Non-Resident Property and Additional Deputy Commissioner (Revenue) 49 DLR296.

Section 52—

Suit fordeclaration of ex parte decree fraudulent—Scope of such a suit—Cause of actionto file and maintain such suit—falsity of claim cannot be a ground for settingaside an ex parte decree. Only when the plaintiff challenges an ex parte decreeon the . ground of fraudulent suppression of summons to deprive him of theopportunity of contesting the false claim in such a suit and the plaintiff canestablish such allegation then such an ex parte decree can be set aside asfraudulent. The plaintiff having purchased the suit property during thependency of the suit which was decreed ex parte the impugned decree is bindingon him. They have no cause of action for the suit.

Haji Md.Jshaque and others vs Rupali Bank 43 DLR 621.

Section 53A—

The learnedSubordinate Judge, though mentioned about the agreement for purchase of thesuit property, did not consider that the petitioner in part performance of thecontract paid part of the consideration and obtained possession of the suitproperty.

Dr ShakawatHossain vs Bangladesh 42 DLR 215.

Section 53A—

The Transferof Property Act has no manner of application in a case under the SuccessionAct. In every case it must be shown that the caveator, but for the Will, wouldbe entitled to a right of which that Will would deprive him.

Shubra NandiMajumder vs Begum Mahmuda Khatoon 42 DLR (AD) 133.

Section 53A—

Thedefendant being in possession of the suit land in furtherance of bainapatra isprotected by the provision of section 47 of the Registration Act.

Mir AbdulAli vs Md Rafiqul Islam 40 DLR (AD) 75.

Section 53A—

Partperformance—When a transferor has delivered possession of his property to thetransferee in part performance of a written contract neither the transferor norany one claiming under him will be permitted to assert his title to theproperty in question or to recover possession of the same so long thetransferee or the person claiming under him has done some act in furtherance ofthe contract and has performed or is ready to perform his part of the contract.

ProgatiIndustries Ltd. vs Shahida Khatun 43 DLR429.

Section 53A—

TemporaryMandatory Injunction—Possession claimed even on the basis of imperfect documentcan be restored to the plaintiff dispossessed without notice—the plaintiff wasin possession on the basis of some documents however imperfect that documentmight be and he could certainly have his possession protected under section 53Aof the Act or under provisions of the Specific Relief Act and if dispossessedhe could be put back to possession.

BangladeshMukti Judda Kallyan Trust vs Nurul Hossain 44 DLR 22.

Section 53A—

Once thedefendant obtained a sale-deed and continued in possession not on the strengthof his bainapatra but on the strength of his sale-deed section 53A ran its fullcourse and exhausted itself.

RafiqulIslam (Md) vs Mir Abdul Ali 44 DLR (AD) 176.

Section 53A—

Tenancyright—Whether it is protectable by the doctrine of part performance—Thecontention that a tenancy being merely a transfer of a "partial right inproperty" it could not be said to be a transfer of property within themeaning of section 53A TP Act was rejected. Though the right is only to enjoythe property still it is a right and the tenancy is a transfer of immovableproperty within the meaning of the said doctrine.

Pradhip Dasalias Shambhu & others vs Kazal Das Sarma 44 DLR (AD) 1.

Section 53A—

Therespondent being in possession of the property on the basis of agreement forsale has the protection of the provision of section 53(A) of the Transfer ofProperty Act.

Bangladeshand others vs Kazi Ashrafuddin Ahmed 55 DLR (AD) 16

Section 55(1)(a)—

Sale ofland—Prayer for getting back consideration money on the plea of absence ofsellers' title when cannot be allowed—The facts of the case disclose that theplaintiff purchased the property with open eyes having opportunity to know ofthe title of the defendant and the plaintiff having obtained delivery ofpossession was still in possession in respect of the whole property. Hisapprehension that 3l4 portion of the land will be taken over by the vestedproperty authority is too vague and remote to give rise to any cause of actionfor the suit as framed.

NarayanChandra Banerjee vs Md. Salek Ali Shaik 44 DLR 202.

Section 58—

Mortgage,mortgagor, mortgagee, mortgage—money and mortgage—deed as defined in section 58of TP Act, 1882.

HBFC vs AMannan 41 DLR (AD) 143.

Section 58—

Mereinadequacy of consideration is no ground to treat a document to be a mortgage.

Somedullahvs Mahmud Ali 44 DLR (AD) 83.

Section 105—

Therelationship between the lessor and lessee is a jural relationship, cautiouslyguarded by section 105 TP Act.

NationalEngineers Ltd. vs Ministry of Defence 44 DLR (AD) 179.

Section 105—

A tenancycan also be created by oral agreement. The fact that no one actually sawpayment ofrent does not detract from the fact that the appellant was describedby PWs as a tenant under the respondent.

NarayanChandra Rajak Das vs Md. Amjad Ali Miah & others 44 DLR (AD) 228.

Section 105—

Heritabilityof a monthly tenancy—Maintainability of execution proceeding against the heirsof a deceased tenant —A monthly tenancy being a lease is an interest in animmovable property and a transfer of interest in the property—an incidence ofheritability is easily discernible from the tenancy created either under astatute or a contract. Right in such a tenancy is ordinarily heritable, thoughthis right is limited "to enjoy" and occupy the property only and thetenant is liable to be ejected.

Pradhip Dasalias Shambhu & others vs Kazal Das Sarma & others 44 DLR (AD) 1.

Section 105—

BFDC is alessee under the government in respect of the disputed stalls to run a fairprice fish selling centre there and in pursuance thereof they appointed thepetitioner as a commission agent to sell such· fish at those stalls. The Courtis justified in holding that the petitioner is a licensee under the BFDC whohas the legal authority to revoke such licence.

HabiburRahman (Md) vs Government of Bangladesh and ors 51 DLR (AD) 39.

Section 105—

The trialCourt has not committed any illegality in declaring that the plaintiff wasentitled to inherit the leasehold right in the shop as it is now well settledthat monthly tenancy is heritable.

IslamicFoundation Bangaldesh vs Firoz Alam and others 51 DLR 141.

Section 105—

Since aco-sharer of a vested property has a preferential claim to lease than thestranger, in the instant case, the petitioner having claimed right and title inthe case land and being admittedly in possession, there is no illegality in theimpugned judgment.

Governmentof Bangladesh and others vs Nidhi Ram Moni and others 54 DLR (AD) 14.

Sections 105 & 106—

Lease iscreated under section 105 and as such statutory notice must be given undersection 106 for termination of tenancy; else no suit for ejectment of a tenantcan be filed.

A noticeunder section 106 of the Transfer of Property Act is mandatory in all cases ofeviction under the Ordinance as well, because a tenancy is created under theTransfer of Property Act and Contract Act and those two Acts are not entirelyexcluded by the provisions of the Ordinance. The Ordinance has not excluded theoperation of section 106 of the Transfer of Property Act either expressly or byimplication. That is the basic reason why a notice under section I 06 of theTransfer of Property Act is mandatory in a case of eviction under theOrdinance.

Abdul Azizvs Abdul Mazid 46 DLR (AD) 121.

Sections 105, 106, & 111—

Lease,creation of—Its duration—Lease is a right only of occupation of an immovableproperty for a certain time. Transfer from one person to another creates thisright. A lease whatever may be its purpose or duration, year to year or monthto month, is created only under section 105. This section does not say that alease for an agricultural purpose or manufacturing purpose shall always be alease from year to year, or a lease for any other purpose shall always be alease from month to month. Section 111 shows different ways and grounds fordetermination of a lease—death of the lessee has not been mentioned as a groundfor its determination. In the decision of this Court reported in 32 DLR (AD)171 a distinction was made between a lease under section 105 and a lease undersection 106 whereas these two sections do not appear to say so.

Pradhip Dasalias Shambhu and others vs Kazal Das Sarma & others 44 DLR (AD) 1.

Sections 105, 106 & 111—

Lease,creation of—Its duration—lease is a right only of occupation of an immovableproperty for a certain time. This right is created by transfer from one personto another. A lease whatever may be its purpose or duration, year to year ormonth to month, is created only under section 105. This section does not saythat a lease for an agricultural purpose or manufacturing purpose shall alwaysbe a lease from year to year, or a lease for any other purpose shall always bea lease from month to month. Section 111 shows different ways and grounds fordetermination of a lease—sdeath of the lessee has not been mentioned as aground for its determination. In the decision of this Court reported in 32 DLR(AD) 171 a distinction was made between a lease under section I 05 and a leaseunder section I 06 whereas these two sections do not appear to say so.

Pradhip Dasalias Shambhu and others vs Kazal Das Sarma & others 44 DLR (AD) 1.

Sections 105k &106—

Where alease is lawfully determined under section I 06 or otherwise for breach of anyexpress condition entitling the lessor to re—enter, the lessee then could onlybe evicted by a suit after service of a notice under section 114A of the Act.Not otherwise.

SultanMahmud Chy vs Ministry of Public Works and Urban Development and ors 56 DLR269.

Transfer of Property Act, 1882 [Section 106 - 135]

Transfer ofProperty Act [IV of 1882]

Section 106—

Observationsthat the notice under I 06 of TP Act having not been served by PW I, thelandlord, was bad in law, are beyond the pleading and amount to making out anew case for the defendant.

KutubuddinAhmed vs Hasna Banu and another 40 DLR (AD) 272.

Section 106—

A benamdaris a trustee for the beneficial owner. A suit for eviction at the instance ofthe owner's wife and son in whose name the Kabalas stand is maintainable.

KutubuddinAhmed vs Hasna Banu and another 40 DLR (AD) 272.

Section 106—

A benamdarrepresents the real owner. A proceeding by or against the benamdar, althoughthe beneficial owner is no party to it, is fully binding on the beneficialowner.

KutubuddinAhmed vs Hasna Banu and another 40 DLR (AD) 272.

Section 106—

There was nooral or written contract whatsoever between the parties that the defendant isentitled to pay arrears rents in lump as and when its suits him. In the absenceof such contract he has to pay rent for the previous month by the 15th of thefollowing month. As the defendant has not done so he is a defaulter in thepayment of rent on a number of occasions.

MM Zaman vsMrs Sakina Ahmed 38 DLR 313.

Section 106—

When thetenancy itself was terminated, a sub-lease created by the tenant cannot be saidto have subsisted. It appears that the High Court Division omitted to considerthat when defendant No. 1 was admittedly a tenant of the appellants predecessorAbdul Aziz Bepari who inducted defendant No. 2 into the suit premises withoutthe consent and knowledge of the latter such transaction was of the nature ofsub—lease, though not binding upon the landlord who was unaware of it. Noquestion of giving consent to the sub—lease could, therefore, ever arise. Moreover,when the tenancy itself which was created in favour of defendant No. I by theappellants; predecessor was terminated, a sublease in favour of defendant No.2 by the tenant cannot be said to have subsisted. A sub—lease can be said to betrespasser in the circumstances of the case. Technicalities of law maysometimes prove to be of great value in winning even a bad case, but thedefendant cannot hope to win on such technicalities alone.

Tajabunnessavs Nazma Begum 40 DLR (AD)36.

Section 106—

Notice signedand issued by one of the landlords on behalf of himself and others terminatingthe lease is a valid notice in terms of section 106.

Dr. SultanAhmed vs AKM Fazlur Rahman 44 DLR 281.

Section 106—

A 'liberalconsideration should be given to a notice under section 106 of the Transfer ofProperty Act and minor inaccuracy or omission will not invalidate the serviceof such notice.

MG Jilani vsMd Waheduddin Sardar 44 DLR 348.

Section 106—

Reagitatinga point—When leave was granted with the tacit admission that the notice undersection 106 of the TP Act was defective the Court cannot in fairness embarkupon a fresh inquiry into the validity of such notice. The landlord-appellantshaving abandoned that point, they cannot be allowed to reagitate the same inthe absence of the respondent.

ZahuraKhatun vs Rokeya Khatun 43 DLR (AD) 98.

Section 106—

A sub-tenanthas no right to stay in the suit premises and no notice to quit is necessary.

Commander(Rtd) AA Chowdhury vs. AKM Imam Hossainand others 49 DLR 23 .

Section 106—

In theabsence of any agreement between the landlord and the tenant a 15 days' noticedetermining the tenancy is required. But if the tenant denies title of thelandlord in the suit premises, the necessity of serving any notice upon him iswaived. Even if there is an agreement for 30 days' notice for terminatingtenancy and the notice served falls short of 30 days, but the suit forejectment is filed after one month, the notice will be regarded as a valid one.

Solaiman(Md) vs. Sufia Akhtar Alam 49 DLR 288.

Section 106—

When atenant denies the title of the landlord in the demised premises without anyvalid reason it operates as a forfeiture of his tenancy right and in such acase a notice under section 106 of the TP Act may be dispensed with.

Solaiman(Md) vs Sufia Akhtar Alam being dead, her heirs Narjesa Rahamatullah &others 50 DLR (AD) 90.

Section 106—

The tenancyin question was according to Bengali Calendar month but the notice that hasbeen given has no reference to the Bengali Calendar. The notice served upon thedefendant cannot therefore be regarded as a notice for expiry of the tenancywith the end of a month.

KamruzzamanKhan vs Shahidul Alam Khan and others 51DLR393.

Section 106—

Withoutserving any notice under section 106 of the Act no tenant can be evicted.

Abdur Noorand others vs Mahmood Ali and others 54 DLR (.4D) 67.

Section 106—

Allowingmore than one month's notice to determine the tenancy has not contravened anyof the provisions of the Transfer of Property Act or the Premises Rent ControlOrdinance.

SantoshKumar Das vs Hajee Badiur Rahman 54 DLR (AD) 93.

Section 106—

Since theagreement in question is not a registered one it must be held to be a tenancyfor month to month.

Loretto vsNasreen Sobhan and another 55 DLR 581.

Sections 106 and 116—

Holdingover—Whether the terms and conditions of the old agreement would continue toguide the relationship between the landlord and tenant.

Dr SuraiyaHossain vs Taherunnesa 41 DLR 441.

Section 106—

Thecontention that once the defendant was inducted in the disputed land withpermission to raise construction, he is no more liable to be evicted therefrom,is totally an unacceptable proposition.

Azim vsNairn Ara Begum 56 DLR 158;

Section 107—

Unregisteredlease deed of immovable property from year to year is inadmissible in evidencefor lack of registration.

Bangladeshvs Md Aslam 44 DLR 69.

Section 109—

Attornment—contentionthat mere deposit of rent in the name of plaintiffs predecessor-in-interest didnot ipso facto prove attornment by the defendant could not be considered as itis found that the question of attornment was not raised in the pleading or inthe proceedings at any time.

Shambh NathSaha vs Alfazuddin Ahmed 41 DLR (AD) 27.

Section 109—

Attornment—Actsas estoppel to prevent the tenant attorning, from denying the title of the oneto whom he attorned. Law does not require the service of any written noticeupon the tenant for effecting attornment. It may be sufficient if the tenant isinformed of the change of ownership even verbally.

Solaiman(Md) vs. Sufia Akhtar Alam 49 DLR 288.

Section 111—

When thereis lease by registered instrument coupled with delivery of possession therecannot be any cancellation of lease by implication.

SudangshuJaladash and others vs Shahabuddin 52 DLR (AD) 119.

Section 111(f)—

Impliedsurrender— Surrender of an under tenancy right need not be in writing. It maybe inferred from act and conduct of parties as well.

MdJashimuddin Kanchan vs Md Ali Ashraf 42 DLR (AD) 289.

Section 111(g)—

There is noprovision of law in determining a tenancy on the ground of a tenant becoming"an undesirable tenant" unless the tenant comes within the mischiefof forfeiture under section 111 (g) of the TP Act.

Maria KeshiD'Rozario vs Hasan Moises Ltd 41 DLR (AD) 135.

Section 111(g)—

Determinationof lease on the plea of breach of condition—When the Government failed todeliver the full area of the land as described in the lease deed it cannot besaid that the petitioner violated the term of the lease deed. Beforecancellation of the registered lease deed it was required to the Government tosend a show cause notice to the petitioner at his changed address.

RahmaniaAgencies Ltd vs Bangladesh 42 DLR 363.

Section 111(g)—

In a case offorfeiture of tenancy for denial of title, written notice of lessor's intentionto: determine the lease is not compulsory as the cause of action is the denialof the landlord's title resulting in determination of the tenancy.

Ishaque (Md)vs Ekramul Haque Chowdhury and others 54 DLR (AD) 26.

Section 111(g) & 114A—

Determininglease invoking the aid of stipulation in the lease deed—In the instant casethe lease was determined on the breach of condition by the lessee as embodiedin the lease deed and issuing notice on him invoking the aid of clause 5 of thelease deed and section 11 l(g) of the TP Act. Therefore, the principle laiddown in AIR 1970 (Cal) 452 is not applicable in the present case. The groundsfor non-compliance of the terms and conditions of the lease deed which resultedin the forfeiture of the lease did not appear reasonable because of the longlapse of time.

Motiul Hoquevs DIT (RAJUK) 43 DLR 407.

Section 111(g)(2)—

The denialof the title of the plaintiff-landlord in the written statement will not beavailable as a ground for determination of tenancy by forfeiture.

SherMohammad vs Saroda Bala Sen 45 DLR 527.

Section 111(g)(l)—

Forfeitureof tenancy—When the defendant tried to make out a case of adverse possessiondenying the plaintiff's title, the defendant forfeits his right of tenancy byrenouncing his character as a tenant and by setting up title in a third personand thereafter claiming his own title.

HaragramTrust Board vs Dr Golam Mortuza Hossain 47 DLR 160.

Section 116—'Holding over' and 'continuing tenant as a statutoryright'.

Theappellant is not 'holding over' within the meaning of section 116 of theTransfer of Property Act nor is .he a tenant by sufferance. Appellant is atenant under section 2(8) of the PRC Ordinance—Appellant entitled to benefit ofsection 18(5) of the PRC Ordinance, subject to the fixation of rent and otherconditions for a fresh tenancy.

Maria KeshiD'Rozario vs Hosan Moises Ltd 41 DLR (AD) 135.

Section 116—

The renewalof the lease in case of holding over, as under section 116 of the Transfer ofProperty Act, does not mean a continuation of the terms and conditions of theold lease but a new lease where there is no meeting of minds as to the term andcondition on which the lease is to be continued. It is a mere tolerance by thelandlord as to the existence of a tenant in his house.

Dr SuraiyaHossain vs Taherunnessa 41 DLR 441.

Section 116—

Holding-over—Tenantscontinuous possession with landlord's assent creates an implied contractconstituting a tenancy by holding—over. Such a tenancy cannot be created bytenant's continuance of possession alone—there must also be the assent of thelandlord, which may be expressed or implied. It may be evidenced by acceptanceof rent or by other circumstances. Where the lessor dissents there cannot beany holding-over. Absence of dissent will not necessarily imply assent, butfrom the tenant's continuous possession for a long period, without contraryindication from the landlord may constitute an implied assent. Implied assentis a question of fact inferable from the length of possession and othercircumstance excluding an inference of landlord's dissent.

Siddik Alivs Nurun Nessa Khatun 43 DLR (AD) 3.

Section 116—

When therehas been no dissent either by the tenant or by the landlord on the expiry ofthe written agreement, the tenancy continued by holding over.

MokbulHossain Khondker vs Jaheda Khatoon 47 DLR 430.

Section 116—

The tenanthaving continued in possession of the premises after expiry of lease agreement,he is bound to pay rent in terms thereof and not those under section 18(5) ofthe Ordinance.

ParimalRanjan Das vs Nasima Khatun 49 DLR 286.

Section 118—

When thevendors and transferees fail to prove execution and delivery of possession byany independent witness, the exchange must be held to be a hoax and not genuinetransaction.

Kamaluddinand others vs Md Abdul Aziz and others 56 DLR 485.

Sections 118 & 119—

Exchange—whatit is—An exchange is a mutual transfer between two persons of the ownership ofproperties, but either both the things should be money or neither of themshould be money. A party to the exchange when deprived of the thing received inexchange has his remedy under section 119. A third party too can raise thequestion of title of a party to the exchange.

SaheraKhatun and another vs Anwara Khatun & others 44 DLR (AD) 86.

Sections 119 & 118—

Exchange—whatit is—An exchange is a mutual transfer between two persons of the ownership ofproperties, but either both the things should be money or neither of themshould be money, a party to the exchange when deprived of the thing received inexchange has his remedy under section 119. A third party too can raise thequestion of title of a party to the exchange.

SaheraKhatun and another vs Anwara Khatun & others 44 DLR (AD) 86.

Section 122—

Gift—Actualdelivery of possession when not essential—Even if it is accepted that noexpress delivery of possession was taken by the donee, the delivery ofpossession if be taken by her constructively the requirement of law issubstantially met—then, relationship of the donor and the donee beingthat ofhusband and wife the possession of husband may be the possession of the wife.

Abu BakerSikder vs Mst. Monowara Begum 42 DLR 403.

Section 123—

In theabsence of a registered instrument a gift by a person belonging to Hinducommunity (governed by the Dayabhaga School of Hindu Law) is not valid undersection 123 of the Act.

Kala Miah vsGopal Chandra Paul and others 51 DLR 77.

Sections 123 & 129—

Since it isa gift under the Mohammedan Law it need not be registered in view of theexemption provided by section 129 of the Transfer of Property Act.

KZ Alam vsSecretary, Ministry of Housing and Public Works 54 DLR 451.

Section 135A—

Though theintroduction of section 135A of the Act only has given right to the insurerafter subrogation to sue on his own behalf but that has not taken away theright of the insured to file a suit for and on behalf of the insurer aftergetting compensation from the insurer.

Dula MeahCotton Spinning Mills Ltd, and another vs MV Mehedinta and others 47 DLR 551.

Uniform Customs and Practice to Documentary Credit

Uniform Customsand Practice to Documentary Credit

Articles 2, 3, 4, 9 & 16—

Theconsistent view of the courts are that only in two exceptional circumstances anissuing bank can absolve its responsibility of not honouring the obligationcreated by it under a letter of credit—Fraud of which it has knowledge andspecial circumstances which warrant an interference by the court.

ComfortsApparels (Pvt) Ltd vs Imperial Knitting Industries Ltd and others 53 DLR 350.

Articles 3 & 4—

The letterof credit issued must be independent or autonomous of the underlying contractof sale of goods or service and the banks concerned with such credit are todeal in documents and not in goods.

KoreaExchange Bank, Seoul, Korea vs Gemini Garments Limited and others 56 DLR 392.

Union Parishad & Paurashava (Election) Rules, 1973

UnionParishad & Paurashava (Election) Rules, 1973

Rule 62(2)—

ElectionTribunal may declare an election void—It can also direct fresh polling in somecenters by further directing that their final result will be ascertained byaggregating the result of the newly held polls and the former polls which haveremained undisturbed.

Haji SaruMia vs Badiul Alam Chowdhury 38 DLR 307.

Union Parishads (Election) Rules, 1983 [Rule 1 - 40]

UnionParishads (Election) Rules, 1983

Part III—

Factsalleging which legality of the declaration of · election result has beenchallenged are an election dispute. In Part—III of the Rules provision has beenmade for adjudication of such dispute by the election tribunal.

MoziburRahman Moznu (Md) vs Abdul Halim and others 53 DLR (AD) 93.

An electiontribunal is a Civil Court so far as it relates to trial of election petition.But it has no jurisdiction to grant ad—interim or temporary injunctionrestraining the elected chairman from taking oath or assuming office astemporary injunction does not relate to trial of election petition.

Md ShahidulIslam vs Election Tribunal 40DLR 500.

—An ElectionTribunal has no jurisdiction to grant temporary injunction.

Md ShahidulIslam vs Election Tribunal 40 DLR 500.

Electionrules—

A singlecorrupt practice by or on behalf of a candidate if proved, sufficient fordeclaring the election void.

Nader AliKhan vs Ahmedullah Chowdhury 39DLR193.

Rule 3—

ElectionCommission to follow the UP Election Rules subject to the Ordinance (LI of1983). Section 2 sub-section (7) defines "Election Commission" whichmeans the Election Commission for Bangladesh. The Election Commission ofBangladesh is constituted under Article 118 of the Constitution. Article 119(2)says that the Election Commission shall perform such functions in addition tothose specified in clause (1) as may be prescribed by the Constitution or byany other law. Rule 3 of the Union Parishad Election Rules is in the followingterms:

"3. Election Commission—( 1)For the purpose of conducing all elections to Union Parishads, the ElectionCommission shall, subject to the Ordinance, follow the procedures laid down inthese Rules.

(2) TheElection Commission may require any person or authority to perform suchfunction or render such assistance as it may direct.

(3) Allexecutive authorities of the Government shall assist the Election Commission inthe performance of its function and, for this purpose, the Election Commissionmay issue such directions as it may consider necessary."

AFM ShahAlam vs Mujibul Hoq 41 DLR (AD) 68.

Rules 4, 6 and 42—

"Election"means the whole of process of election beginning from arrangement of electoralroll to the delivery of election papers to the concerned official afterpublication of results.

JalauddinAhmed vs Matiur Rahman Khan 41 DLR 77.

Rules 6 and 7—

Voters listchanged—Election held on ward basis and not on village basis.

Nader AliKhan vs Ahmedullah Chowdhury 39 DLR 193.

Rules 6, 9, 26 & 29—

Changing theplace of poll—for change of a polling station, whether a first election or are—poll, 15 days' intervening time between the date of change and that of pollis not necessary.

Laizu Begumvs Election Commission 42 DLR (AD) 180.

Rules 6, 9, 26 & 29—

Change ofpolling station—Question of violation of election rules—Though no specificintervening time from the date of change of a polling station to the date ofpoll has been provided in the rules, it does not mean that the returningofficer may shift the place of, poll just on the eve of the polling giving noopportunity to the voters to know about the change.

Abul KasemTalukder vs Shamsul Hoque 45 DLR 121.

Rules 6(1)(A), 6(1)(B), 9, 20, 26, 29(2)(a), 29(2)(b), 30, 31, 34,35, 38, 39, 40—42 and 60—

Functionsand duties of the Election Commission and those of the Returning Officer,Presiding Officer, District Election Officer and UNO or DC discussed.

Analysis ofthe Ordinance reveals the function and duties of the Election Commission whichhas been mentioned in sections 21, 24, 28 and the Rules 6(1)(A), 6(1)(B), 9,26, 29(2)(a) and 29(2)(b).

Functionsand duties of the Presiding Officers can be found in Rules 6(3), 7(2), 24(1),27, 29, 30, 30(3), 31, 34, 35, 38, 38( 4), 39 and 40. Functions and duties ofthe District Election Officers can be found in Rules 4, 5 and 9. Lastly, thefunctions and duties of the UNO and DC can be found in Rules 20 and 60.

Thus 4categories of Officers namely, Returning Officer, Presiding Officer, DistrictElection Officer and the UNO or DC are involved in the matter of electionprocess under the law.

AFM ShahAlam vs Mujibul Huq 41 DLR (AD) 68.

Rules 6(1), 9(l)(c) and 29 (2)(b)(c)—

The impugnedNotification relating to holding election afresh at the same polling stationsis not hit by Rule 6(1) of UP (Election) Rules, 1983.

Since theReturning Officer in exercise of his authority under clauses (b) and ( c) ofsub—rule 2 to Rule 29 issued the Annexure 'C' directing to hold election, whichwere necessitated for holding afresh at the same polling stations for which apublication had already been done under said Rule 6 in relation to a date forholding general election of both Chairman and members under clause (c) sub—rule1 of the Rule 9 i.e. 10-2-88, in our opinion, the impugned notification is nothit by Rule 6, sub—rule (1) of the aforesaid Rules.

Md Abdu Miavs The Election Commission 41 DLR 215.

Rules 6(AI) & 9—

The settingup of polling station and the publication of the list of polling station are tobe made at least fifteen days before the polling day as provided in Rule 6(AI)which therefore can be done after the filing of the nomination papers as well,as the day for filing for nomination papers must be fixed on a date more than fifteendays before the polling day as it is evident from Rule 9. Hence the electionprocess as detailed in Part II of the Rules which also provide for setting upof polling station will not come in conflict with the observation of theAppellate Division in the case reported in 28 DLR (AD) 51.

JalaluddinAhmed vs Matiur Rahman Khan 41 DLR 77.

Rule 7(1)(c)—

Even if itis conceded that the petitioner himself made the overwritings and so voternumber of the proposer andlor the candidate as given in Form A, do not tallywith that of the Electoral Roll even then, for such defect the ReturningOfficer cannot reject the nomination paper rather, in terms of Rule15(3)(d)(ii) the Returning Officer is required to get any such defect remediedforthwith.

ShahajadaTalukder vs Election Commissioner 55 DLR 420.

Rules 9(i)( d) and 25—

Thus, it maysafely be said that if it is necessary to hold an election for both two officesof member and Chairman at any polling station it is mandatory to hold suchelection simultaneously.

Chairman'selection having been held earlier peacefully it was not necessary to be heldagain. Thus, evidently the process of Chairman's election at that pollingstation ended as soon as the Presiding Officer declared the result of suchelection at that polling station. But the election for the office for memberswas not completed since the Presiding Officer failed to count votes of themember—candidates. In such circumstances the Presiding Officer stopped electionof the office of the members and recommended to hold fresh poll thereat for themembers only. Thus, there appeared no necessity of holding election for theoffice of Chairman, which had already been held and ended peacefully at thatpolling station.

Md Abdu Miavs Election Commission 41DLR215.

Rules 12(5) & 44(3)—

Inaccuratestatement of head while making deposit of security for election cannot be saidto be so vital as to lead to the conclusion that no proper deposit was madewhen it was in fact made with the Bank as security for the cost of electionpetition.

Abdul Kadervs Md. Abdul Rafi Prodhan 43 DLR 166.

Rule 15—

TheReturning Officer at the time of scrutiny under Rule 15 of the Rules 1983, hasnot been given any power to reject the nomination papers because of variationof voter number of the proposer or the candidate in the nomination paper forthe post of Chairman of Union Parishad. Similarly, in section 7(2) of theOrdinance 1983 there is no ground that because of the variation of the voternumber as given in nomination papers from that of the Electoral Roll, thecandidate will be disqualified.

ShahajadaTalukder vs Election Commissioner and others 55 DLR 420.

Rule 29—

PresidingOfficer to stop the poll if polling is interrupted and to inform the ReturningOfficer. Returning Officer to immediately report the circumstances to theElection Commission. Presiding Officer not competent to address directly to theElection Commission. Also, in the absence of any allegation of stoppage ofpolls Election Commission cannot decide whether polling was peaceful or not.

Abdul MajidMollah vs The Election Commission 41 DLR 178.

Rule 15—

Even if itis conceded that the petitioner himself made the overwritings and so voternumber of the proposer andlor the candidate, as given in Form A, do not tallywith that of the Electoral Roll even then, for such defect the ReturningOfficer cannot reject the nomination paper rather, in terms of Rule15(3)(d)(ii) the Returning Officer is required to get any such defect remediedforthwith.

ShahajadaTalukder vs Election Commissioner and others 55 DLR 420.

Rule 16—

Onepreferring no appeal against the decision of the Returning Officer acceptingnomination paper does not lose the right to challenge the same by filingelection petition.

KabiruddinAhmed vs Akmal Hossain 48 DLR 245.

Rules 16(2) and 70—

Thejurisdiction of the Civil Court being not barred by any express statutoryprovision, the Civil Court can go into the question of scrutinising thestatutory functions of the Returning Officer and other functionaries.

Haji SultanAhmed vs Abdul Jalil Chowdhury 40 DLR 512.

Rule 29—

In view ofthe facts and circumstances of the case and in view of the decision in CA 40 of1988 [reported in 41 DLR (AD) 68] the High Court Division acted illegally ininterfering with the Election Commission's order of reelection.

Nurul Islam(Md) vs The Election Commission 42 DLR (AD) 71.

Rule 29—

There wereserious obstructions and interruptions at the time of the election, thePresiding Officer adjourned the poll under Rule 29 of the Election Rules andsent a report to the Returning Officer, that in due course the report of thePresiding Officer was sent to the Election Commission, and, therefore, thedirection for reelection was passed by the Election Commission.

Held: In view of the facts and circumstances of the case and in view ofthe decision in CA 40 of 1988 [reported in 41 DLR (AD) 68] the High , CourtDivision acted illegally in interfering with the Election Commission's order ofre-election.

Md NurulIslam vs Election Commission 42 DLR (AD) 71.

Rule 29—

Pollspostponed during poll period. Subsequent declaration of result has no value.We, therefore, hold on balance respondent Nos. 28, 29 and 31 and the petitionerhas produced better evidence in this Court that the Presiding Officer postponedthe polls under Rule 29 and informed the Returning Officer about the sameduring the poll period itself and therefore the subsequent declaration ofresult vide Annexure 6 to the affidavit—in—opposition of respondent No. 30 has absolutelyno value.

Sherajul HuqMullick vs Secretary, Ministry of Local Government & Rural Development 41DLR 100.

Rule 29—

There beingobstruction during the poll and further counting of votes being done illegallyit resulted in material irregularity vitiating the election.

Abu TaherChowdhury vs Government of Bangladesh 37 DLR 169.

Rule 29—

Illegal andcorrupt practice materially affected the election thereby vitiating it.

The factthat at the other centers the opposite party No. 2 had a lead of 1323 votesagainst the petitioner whereas the petitioner got 2372 votes i.e. 99% votes,clearly show that the petitioner and his followers adopted illegal and corruptpractices in the disputed centre and this has materially affected the result ofthe election.

Abu TaherChowdhury vs Government of Bangladesh 37 DLR 169.

Rule 29—

Stopping ofpoll—If for any reason the Presiding Officer adjourns the poll then the pollshould not be continued again. It should be stopped immediately and reported tothe Returning Officer for necessary action as otherwise the whole scheme offree and fair elections will fail. In the facts of the present case theElection Commission was right in cancelling the election result and holdingfresh poll.

MamtajulKarim vs Bangladesh 43 DLR 530.

Rule 29—

Recounting,validity of— Election Tribunal cannot recount votes after holding that the pollwas adjourned. If the poll was adjourned due to any reason, then the onlyprocedure for the Tribunal to follow is to report the circumstances to theElection Commission and fix a date for fresh poll with its approval. TheTribunal cannot also declare one candidate elected in place of another afterholding that the poll was adjourned.

Abul KalamChowdhury vs Mohammad Zulfiqar 44 DLR 595.

Rule 29—

In theabsence of any report from the Presiding Officer regarding any disturbance inthe poll or any other situation warranting repoll the Commission had noauthority to direct repolling.

Rezaul Karimvs Kabir Ahmed 51 DLR 404.

Rule 29(2)—

Rebutting thecontentions raised by a Counsel on the powers conferred on the ReturningOfficer, the Court held—

It is theElection Commission which will take the decision whether there are reasons forordering fresh poll and the Returning Officer shall fix the date when the pollis to be held.

AFM ShahAlam vs Mujibul Haq 41 DLR (AD) 68.

Rule 29(2)(b)—

AdjournedPoll—Returning Officer's order to hold election afresh in the office of membersis completely within the ambit of law.

As regardsadjourned poll at any polling station the Returning Officer upon takingapproval of the Election Commission shall fix up a date for fresh poll thereatunder clause (b) to sub—Rule 2, Rule 29. Thus, in our opinion, the ReturningOfficer acted within the ambit o.f law and in exercise of his lawful authorityunder Rule 29 directing to hold election afresh in the office of members onlyat Mohanpur Primary School polling station.

Md Abu Miavs The Election Commission 41 DLR215.

Rules 34 & 38—

In theabsence of any materials before it, and there being no objection raised at the· time of recount before the appropriate forum, this Division cannot hold thatthe Election Tribunal did not recount votes in accordance with the rules noraccept any of the invalid votes as found by the Election Tribunal as valid.

Shah AlamPatwari (Md) vs Md Siddiqur Rahman Bhuiyan and others 53 DLR 390.

Rules 37-39 & 70—

Authority torecount ballots—Neither the Returning Officer nor the Election Commission hasgot any power to recount ballots after opening the election materials kept insealed gunny bags. This power has not been given to them in order to maintainsanctity of election materials. The point raised as to plenary power of theElection Commission in the facts and circumstances of this case, is a purelyacademic question not called for decision in this case. The Election Commissionhas been given power to decide certain matters, such enquiry will not comewithin the purview of judicial enquiry, because the power to decide judiciallyis different from deciding administratively.

A Rouf vsMinistry of LGRD and Co-operatives 43 DLR 29.

Ruless 37-39 & 70—

In theabsence of any justification, recounting of ballots should not have beenordered, in the absence of any prayer for doing it immediately after thepolling.

MuzaffarHossain vs Md Humayun Kabir and other 48 DLR (AD) 59.

Rule 38—

The Ruledoes not explicitly empower recounting of ballot—paper by the Tribunal but itdoes also not debar the Tribunal to pass order for recounting in exercise of inherentpower.

Abdul QayumSarder vs Rezaul Karim (Md) and others 47 DLR 241.

Rules 38-41

ElectionCommission's statutory power to organise, conduct and hold fair and freeelection and to direct fresh poll in appropriate cases—limit to this power—thispower is to be exercised subject to the Election Rules.

Abdur RoufMiah vs Fazlur Rahman 43 DLR (AD) 23.

Rules 38-43

When theElection Commission directed consolidation and acceptance of the result assubmitted by the Presiding Officer, the High Court Division could not sit onjudgment over it and direct a fresh poll on the prayer of the appellant.

Shah AlamMollah (Md) vs Election Commission, Dhaka 42 DLR (AD) 73.

Rule 38(1)—

Recountingof votes by Returning Officer—Not premitted.

Md BadrulAlam Chowdhury vs Md Abdul Mannan 38 DLR (AD) 270.

Rule 38(1)—

Recountingof votes after 19 months from the date of election as directed by the HighCourt Division—In the present case such an order cannot be supported.

Md BadrulAlam Chowdhury vs Md Abdul Mannan 38 DLR (AD) 270.

Rules 38(3) & 39(1)—

Rule 38 ofthe Union Parishads (Election) Rules provides for counting of votes. Sub—rule(3) says "for the purpose of counting ballot papers. The Presiding Officershall—(a) arrange separately the ballot papers in respect of members and ofChairman." Then says that the Presiding Officer shall scrutinise theballot boxes and ballot papers for members and count the same in the presenceof the contesting candidates or their election agents or polling agents and preparea statement in Form 'J' and declare to be elected the contesting candidates infavour of whom the highest number of votes has been cast.

Md BadrulAlam Chowdhury vs Abdul Mannan 38 DLR (AD) 270.

Rule 38(3)(b)—

Invalidballot papers—Incidents which characterise the invalid ballot papers have beenstated.

Clause (b)of sub—rule (3) of Rule 38 of the Union Parishad (Election) Rules, 1983provides that the ballots which bear no official mark, or any writing or anymark other than the official mark, or any mark made with any stamp other thanthe rubber stamp supplied for the purpose, or to which a piece of paper or anyother object of any kind has been attached, or no mark with the rubber stampindicating the contesting candidate for whom the voter has voted or any markfrom which it is not clear for whom the voter has voted, or more marks than thenumber of contesting candidates to be elected are to be treated as invalidballot papers.

AKM RuhulAmin vs Al haj Abdul Latif 41 DLR 206.

Rule 38( 4)(b)—

In an appropriatecase the Election Tribunal, in the interest of justice, may recount ballotpapers for proper resolution of an election dispute.

AbdulMutalib vs Md Mostakim Ali and others 51 DLR (AD) 228.

Rules 39 & 41—

GazetteNotification is the official declaration of the result of election and suchdeclaration is to be given effect over the unofficial declaration of theresult.

NasimaKhatoon vs Chief Election Commissioner and others 50 DLR 555.

Rule 39(1)—

Thepetitioner having agreed that the lottery might be conducted by the ElectionTribunal cannot turn round and challenge the direction of the learnedAdditional District Judge.

Zamir Ali vsShamru Miah 40 DLR 463.

Rules 39(3)(4)(5) & 41—

Publicationof incomplete election result, validity of—Statement in Form "K" fromthe Presiding Officer of one of the polling stations having not been received,the Returning Officer has no scope to consolidate statements of all thePresiding Officers. As such the declaration of one candidate as electedchairman is without lawful authority. Rule 41 contemplates publication ofresults after completion of election of the whole of the Union. There should beno piecemeal notification, one for chairman and another one or two for themembers. The impugned Notification is liable to be set aside as a whole.

Syed AlamMia vs The Election Commission 42 DLR (AD) 242.

Rule 39(4)—

In case ofmember's election and in the case of Chairman election.

In the caseof members' election, the Presiding Officer after counting will declare who hasbeen elected. But in the case of Chairman election, it is the ReturningOfficer, who after consolidating the ballot box in Form 'L' will declare whohas been—elected Chairman, vide Rule 39(4X5).

Md BadrulAlam Chowdhury vs Abdul Mannan 38 DLR (AD) 270.

Rules 39(4)—

High CourtDivision was in error in entertaining the dispute which was an election disputerequiring adjudication through the elaborate procedure of collection ofevidence.

MoziburRahman Moznu (Md) vs Abdul Halim and others 53 DLR (AD) 93.

Rule 39(4)—

If thecandidate or his election agent or polling agent is not present due to hisexigency or vagary the Presiding Officer is not required to postpone countingof votes, preparation of statement in Form 'K' and sending the same to theReturning Officer.

MoziburRahman Moznu (Md) vs Abdul Halim and others 53 DLR (AD) 93.

Rule 39(4)—

Theprovision in the sub—rule contemplates counting of votes by the PresidingOfficer in presence of the candidates or their agents if they of their ownvolition are present.

MoziburRahman Moznu (Md) vs Abdul Halim and others 53 DLR (AD) 93.

Rule 39(4)(5)—

In a casewhere a candidate and his polling agent(s) remain absent due to hisltheirexigencies or vagaries at the time of counting of votes and the PresidingOfficer prepares statement in Form 'K' in such situation the same would not beinvalid.

MoziburRahman Moznu (Md) vs Abdul Halim and others 53 DLR (AD) 93.

Rule 40(3)(b)—

A court ortribunal must consider the evidence of both the parties.

MukhtarAhmed vs MH Osmani 39 DLR 281.

Union Parishads (Election) Rules, 1983 [Rule 41 - 70]

UnionParishads (Election) Rules, 1983

Rules 41, 45 and 48—

Power of theElection Tribunal enumerated—Under Rule 48 the Tribunal shall have all thepowers of the Civil Court trying a suit under the Code of Civil Procedure. Rule48 indicates that the Election Tribunal shall be competent to give reliefsmentioned in Rule 45 or make such orders as it may think fit but the ElectionTribunal shall not declare the election of any returned candidate or theelection as a whole void unless it is satisfied that the result of the electionhad been materially affected by reason of the failure of any person to complywith or the contravention of these rules. The Ordinance and the Rules madethereunder clearly provide for special forum in the Election Tribunal to determinethe election dispute which is to be brought before the Election Tribunal by anelection petition after publication of the result in official gazette underRule 41. The contravention of Rules during election process can however, bemade a ground to call the election in question by filing election petition.

Jalal UddinAhmed vs Matiur Rahman Khan 41 DLR 77.

Rules 43, 44, 45, 47 and 49—

Dealing withelection disputes—Manner of trial of election petition—Election Tribunal tohold trial of election petitions in accordance with procedure for trial ofsuits under Code of Civil Procedure. Tribunal's duties and functions stated inRule 49.

Part—IIIdeals with Election disputes. Rules 43 and 44 provide as to who shall beparties to an election petition and the manner of filing it and the relief thatcan be asked for is given in Rule 45. Rule 4 7 deals with the procedure beforethe Tribunal and says such petition shall be tried "as nearly as may be,in accordance with the procedure for the trial of suits under the Code of CivilProcedure. It will have all the power of Civil Courts and shall be deemed to bea Civil Court within the meaning of sections 480 and 482 of the Code ofCriminal Procedure. Rule 49 deals with trial of the election petition andprovides that the Tribunal shall not declare the election of any returnedcandidate or election as a whole void unless it is satisfied that the result ofthe election has been materially affected by reason of the failure of anyperson to comply with, or the contravention of, these rules.

AFM ShahAlam vs Mujibul Huq 41 DLR (AD) 68.

Rule 44—

Whenamendment of the rule relates only to procedure as to manner of filing anelection petition, no one acquired thereunder any vested or substantive right.

KabiruddinAhmed vs Akmal Hossain and others 48 DLR 245.

Rules 44(1) and 41—

Under Rule44(1) of the said Rules an election petition shall be presented to the Tribunalwithin 30 days next after the publication of the names of the returnedcandidates in the official Gazette under rule 41.

Hosne Zamanvs Election Tribunal 38 DLR 435.

Rules 44(1) and 41—

Whenamendment seeks to introduce fresh facts with averments having the effect offiling a fresh election petition, such amendment when allowed by the Tribunal,is unauthorised.

Hosne Zamanvs Election Tribunal 38 DLR435.

Rule 44(2)—

Election—Electiondispute complaining irregularity, illegality—Election Tribunal finds illegalityin the election which materially affected the election—Election declared void.

Saru Mia vsBadiul Alam 38 DLR 307.

Rule 44(5)—

Fresh factby way of additional evidence at appellate stage whether permissibleWhen theopposite party omitted to allege in his election petition that the petitionerwas disqualified from being a candidate in the election being a defaulter inpayment of loan he could not be permitted to bring such fact by way ofadditional evidence at the appellate stage.

Abul Kashemvs Majiz Mid 43 DLR 523.

Rules 45—

Theparticipation of a candidate in the election having been found illegal he wasdisqualified to contest the election and so the Tribunal was quite competent todeclare the election as a whole void as it materially affected the result.

AhsanurRahman vs Akkel Molla & others 47 DLR 274.

Rule 45—

TheTribunals having found that there was no corrupt or illegal practices adoptedin the election, there was no question of declaring the whole election void.

Farukuddinvs Md Litan Bepari and others 47 DLR 560.

Rule 45—

Petitioner'selection as chairman was rightly declared void, for, he being disqualified tocontest the election, his participation in the election was no participation inthe eye of law.

Farukuddinvs Md Litan Bepari and others 47 DLR 560.

Rule 45—

TheAppellate Tribunal was not justified in setting aside the Election Tribunal'sdeclaration of the opposite party elected as chairman on the erroneous view ofignoring the verdict of the majority voters in favour of the petitioner whenthe participation of the latter in the election itself was found illegal.

Farukuddinvs Md Litan Bepari and othes 47 DLR 560.

Rule 45—

By amendmentfacts already stated having been clarified and made explicit and nature andcharacter of the election petition having not been changed the amendmentscannot be struck down.

Nazem Uddinvs Election Tribunal 53 DLR (AD) 17.

Rules 45—

Theparticipation of a candidate in the election having been found illegal as hewas disqualified to contest the election, the Tribunal was quite competent todeclare the election as a whole void as it materially affected the result.

Ziaul Hoquealias Bakul vs Md Sirajul Islam 56 DLR 424.

Rules 45, 47 and 48—

ElectionTribunal is a civil Court for limited purpose as described in Rule 45.

Rules 47 and48 only empower the Tribunal to follow the Civil Procedure Code and act as acivil Court for a limited purpose, namely, for the purpose described in rule45, according to rule 45 the petitioner could claim as a relief only (a) thatthe election of any returned candidate is void and that the petitioner or someother person has been duly elected (b) that the election as a whole is void.

MahmudHossain vs Sayeb Ali 41 DLR 44.

Rule 45(a)—

Prayer interms of clause (a) of rule 45 granted by the Election Tribunal rightlygranted. The prayer (a) has rightly been granted by the Election Tribunal hasbeen affirmed by the appellate authority.

Md BadrulAlam Chowdhury vs Abdul Mannan 38DLR (AD) 270.

Rule 47—

ElectionTribunal is not a Civil Court constituted under the Civil Courts Act,1887—Powers which an Election Tribunal exercises as a civil Court under theCivil Procedure Code while trying an election case does not empower suchTribunal to give retrospective effect to an amendment when such amendment hasthe effect as if a fresh election petition has been filed on the date ofamendment.

Hosne ZamanSarker vs Election Tribunal 38 DLR 435.

Rules 47 & 48—

An electionpetition shall be tried, like a suit, under the Code of Civil Procedure,Tribunal shall exercise all the powers of the Civil Court.

Amalendu Mazumdervs Selimuzzaman 39 DLR 140.

Rules 47 & 48—

An electiondispute relating to right to office is no doubt civil in nature and theprocedure laid down in Rules 47 and 48 for the trial of such disputes is thesame as that of an ordinary Civil Court.

As a measureof abundant caution, the legislature has made specific provisions for transferof an appeal in other enactments—There is no obscurity or ambiguity in themeaning of the word 'District Judge' and his powers.

Provision oftransfer of appeal by the District Judge has been inserted as ex abundantcautela in some subsequent enactments so that the District Judge may not beasked to hear and dispose of different kinds of appeals provided in differentspecial statutes himself and to avoid a great congestion of different kinds ofappeals in one single court and resultant delay in disposal.

WhenLegislature confers a special or additional jurisdiction on a recognised Courtit may lay down the manner in which it is to be exercised, but if it is silentthen all rules of procedure that apply to its ordinary jurisdiction will beattracted in regard to special jurisdiction. If jurisdiction is to be ousted,the exclusion of jurisdiction must be in clear and unequivocal terms.

MohammadJulfikar vs Abul Kalam 42 DLR (AD) 83.

Rule 48—

A party isexpected to raise any dispute of the nature in the appeal instead of rushing tothis court thereby delaying disposal of the election petition.

Nazem Uddinvs Election Tribunal and others 52 DLR 189.

Rule 49—

The procedureto be followed by the Tribunal in an election petition—Election not to bedeclared void unless it is materially affected due to failure to comply with,or contravention of the rules.

AmalenduMazumder vs Selimuzzaman 39DLR140.

Rule 49—

Election Tribunalmay declare an election void—It can also direct polling in some centers byfurther directing that their final result will be ascertained by aggregatingthe result of the newly held polls and the former polls which have remainedundisturbed.

Haji SaruMia vs Badiul Alam Chowdhury 38 DLR 307.

Rule 49—

Electionshall stand unless the Election Tribunal finds that it has been materiallyaffected by illegalities.

Md Shajahanvs Md Sadeq 38 DLR (AD) 275.

Rule 49—

Settingaside election of returned candidate—The returned candidate secured 4033 votesin the two centers results of which are under challenge. In the other twocenters, out of total four centers, he polled only 396 votes which would notoff-set the reduction of his votes as a result of exclusion of votes obtainedby him in the two disputed centers: The result of the election is thereforematerially affected and the election in the disputed centers is liable to beset aside.

Abul Kashemvs Mofiz Mia 43 DLR 523.

Rule 49—

When thereexists a factual foundation and a decision on allegations relating to theelection cannot be given without recounting the ballots, the Tribunalcompetently ordered for recounting of votes.

AnsaruddinAhmed vs Senior Assistant Judge 46 DLR (AD) 181.

Rule 49—

The tribunalitself when was not in a position to say whether the double marks on ballotpapers were post—election acts or were the subsequent doing of the respectivevoters, the election of the petitioner cannot be interfered with. In such aposition the presumption is always in favour of the returned candidate whichcannot be declared a nullity unless the tribunal" is satisfied" aslaid down in Rule 49, that election has been materially affected by someillegal acts of contravention of some Rules.

Humayun Kabir(Md) vs Md Mozaffar Hossain 48 DLR . 560.

Rule 49—

Violation ofany rules contained in Electoral Rolls, Rules 1982 will not be any ground fordeclaring the election void and the election can be declared void only in theevent of violation of Union Parishad Election Rules, 1982 as mandated inproviso to sub—rule 2 of rule 49 of the Union Parishad (Election) Rules, 1983.

Khandakar(Md) Shahjahan vs Md Atiar Rahman Monshi & others 53 DLR 275.

Rule 49(2)—

Infringementof any rule cannot vitiate an election unless the same has materially affectedthe result of the election.

Abu TaherChowdhury vs Government of Bangladesh 37 DLR 169.

Rules 52(4) & 39(5)—

Electionrules—Their contraventions—Successful candidate carrying the voters (to thepolling booth) by baby-taxi and rickshaws—that constitutes corrupt practice,vitiating the election—Either the next candidate having largest votes to bedeclared elected or reelection to be ordered.

Nader AliKhan vs Ahmedullah Chowdhury 39 DLR 193.

Rule 70—

Writ petition—Filingof suit and writ petition simultaneously for the same relief—The fact offiling of the suit, which was later dismissed, was not mentioned in the writpetition—High Court Division summarily dismissed the writ petition as being notmaintainable on the ground of suppression of facts. No Rule was issued.

AwladHossain vs Haji Moniruddin Ahmed 40 DLR 427.

Rule 70—

There wereserious allegations and counter—allegations as to the manner of poll in the twodisputed centers—The High Court Division ought not to have interfered in thematter J involving highly disputed questions of facts—The Election Commissionacted within its jurisdiction under Rule 70 of the UP (Election) Rules, 1983.

MoulanaAbdul Matin vs Oli Ullah Khan 42 DLR (AD) 76.

Rule 70—

Two groupsof lawyers holding the diametrically opposite views on the power conferred byrule 70—Thus the arguments of the learned Counsels can be summarised by sayingthat one group of learned Counsels namely, Mr SR Pal, Mr Syed Ishtiaq Ahmed, DrKamal Hossain and Mr TH Khan have taken the view that the power conferred byRule 70 is a necessary inherent power for conducting the election while othergroup of learned Counsels namely. Mr Khandker Mahbubuddin Ahmed, Dr RafiqurRahman, Mr Mainul Hosein and Mr Amirul Islam have taken the view that therespective functionaries must be allowed to perform their duties without anyinterference by the Election Commission.

AFM ShahAlam vs Mujibul Huq 41 DLR (AD) 68.

Rule 70—

ElectionCommission has been given the power from start to finish to oversee thatelections are held and conducted in accordance with law. Considering the lawwhich we have surveyed in the foregoing paragraphs it has been given the powerfrom start to finish to oversee that the elections are organised, held andconducted in accordance with law.

AFM Shah Alam vs Mujibul Huq 41 DLR (AD) 68.

Rule 70—

Rule 70confers power upon the Election Commission to review any order passed by thedesignated authority.

Rule 70 hasconferred the power to review any order passed by the designated authority.Rules 29 shows that when the poll is adjourned the Presiding Officer willinform the Returning Officer and the Returning Officer shall (a) Immediatelyreport the circumstances to the Election Commission; (b) appoint as soon as maybe, with the approval of the Election Commission, a day for a fresh poll; and(c) fix a place or places at which and the hours during which such fresh pollshall be taken.

AFM ShahAlam vs Mujibul Huq 41 DLR (AD) 68.

Rule 70—

The overallresponsibility for holding the election and to see that it is conducted justly,honestly and fairly is that of the Election Commission itself—To deny suchpower is to encourage muscle power in election—Election is needed to sustaindemocracy and a perverse election or voterless election destroys democracy—Power of review given in Rule 70 is of necessity an important one for holdingelections honestly, justly and fairly.

Again, ithas been argued that the declaration of the Presiding Officer as to the personwho got highest number of votes is final and the Presiding Officer is only toprepare the statement in Form "1" [TA] and in case of ChairmanElection the Presiding Officer sends it to the Returning Officer whoconsolidates the results and upon consolidation by the Returning Officer theElection Commission is obliged to publish the result and it has no otheroption.

AFM ShahAlam vs MujibUl Huq 41 DLR (AD) 68.

Rule 70—

ElectionCommission has power to decide certain matters—Whether this enquiry fallswithin the purview of judicial inquiry—Power to decide judicially is differentfrom deciding administratively—High Court Division not to enter into territoryof disputed facts.

AFM ShahAlam vs Mujibul Huq 41 DLR (AD) 68.

Rule 70—

ElectionCommission vested with plenary, supervisory and discretionary jurisdiction (i)to oversee that election is conducted honestly, justly, fairly and inaccordance with the Ordinance & Rules made thereunder, (ii) to pass anyorder for repoll acceptance consequences of result and review; (iii) Article102 of the Constitution cannot be invoked except on the limited ground of coramnon judice malice in law.

AFM ShahAlam vs Mujibul Haq 41 DLR (AD) 68.

Rule 70—

The ElectionCommission is quite competent under Rule 70 to pass any order including reviewof an order of any Election Officer.

AwladHossain vs Haji Moniruddin Ahmed & others 40 DLR (AD) 270.

Rule 70—

AppellateDivision in its decision reported in 41 DLR (AD) 68 enunciated the propositionof law that Election Commission can interfere at any stage from theannouncement of election to the publication of result in the official Gazette,but not after such publication.

Hazrat Alivs Election Commission 41 DLR 486.

Rule 70—

ElectionCommission's order to hold re—poll on the basis of report from PresidingOfficer without calling for any report from the Returning Officer is withoutjurisdiction. In that view of the matter, we hold that the interference of theElection Commission was without jurisdiction.

Abdul MajidMolla vs Election Commission 41 DLR 178.

Rule 70—

Schemepropounded by Legislature—Power to cancel the Notification not available to theElection Commission.

Hazrat Alivs Election Commission 41 DLR 486.

Rule 70—

ElectionCommission by reviewing its order committed no illegality in the circumstancesof the case—In this connection it is interesting to note what prompted theElection Commission to review its own order. The Election Commission in itsreview order observed, "Presiding Officer made no complaint to DistrictElection Officer or to the Returning Officer or to the police authority abouthis allegation that opposite party compelled him to submit a report that pollwas not held peacefully, till 23—4—88 when for the first time he made such allegationbefore the Secretary, Election Commission" and in the last but oneparagraph categorically stated, "It is very unusual for a PresidingOfficer to approach the Election Commission directly by passing the ReturningOfficer and the District Election Officer." It is in this circumstancesthat order was reviewed. We do not find any illegality to have been committedby the Election Commission by reviewing its order.

Wahid Haldervs The Election Commission 41 DLR JJ9.

Rule 70—

ElectionCommission passed an order under Rule 70 and then reviewed its own decision.

Held:Election Commission cannot review its own decision after it passes an orderunder Rule 70. For all the reasons given above we hold that the petitioner hasmade 'out a case for holding a fresh poll at centre (a) only, but has failed tomake out any case for interference with regard to centers (b) and (c). SherajulHuq Mullick vs Secretary, Ministry of Local Government & Rural Development41 DLR 100.

Rule 70—Wedo not think that the respondent could rightfully claim any benefit on thebasis of general findings made in the documents (Annexure 'D' and 'E') afterall these months, particularly when he made no move after the District ElectionOfficer had refused to accept his nomination paper and further held that it wasnot right and proper for the High Court Division to have directed the ElectionCommission to dispose of the application of the respondent again. It isapparent from the facts noticed above that respondent missed the bus due to inertiaand it is well known that delay not only defeats justice but in some cases itdefeats rights also.

Abdul JabbarDakua vs Kanchan Ali Sikder 42 DLR (AD) 101.

Upazila Parishad Business Rules

UpazilaParishad Business Rules

Rule 4(y)—

Disputebetween the students of Kowkhali College and the UNO of the said UpazilaParishad resulting in strike in all educational institutions by the students. Acoordination committee was formed and it adopted a resolution that the UNO, MrMA Salam be transferred in public interest—Some members of the said co—ordinationcommittee along with some local people approached the petitioner for takingsteps in the matter—The petitioner along with others approached the Secretary.Establishment Division in 1984 and represented the matter where—upon an orderwas passed for enquiry into the allegations made against the UNO, Kowkhali, wholater approached the petitioner not to press for enquiry and also forwithdrawal of the complaint—The UNO having failed to realise his demand fromthe petitioner got a resolution passed by the Upazila Parishad using hisinfluence as Chairman of the Upazila Parishad on 25—3—84 supporting hisretention there and also made false and serious defamatory allegations againstthe petitioner—By referring Rule 4(y) of Upazila Parishad Business Rules, it issubmitted on behalf of the respondent that the present resolution at least wasin respect of other matters of public interest—Upazila Parishad can adoptresolution in public interest but that public interest is limited to the publicinterest as relates to the subject of the Upazila Parishad and not in respectof public interest concerning persons and matters outside the subject of theUpazila Parishad—The impugned resolution being not in conformity with thefunctions prescribed in section 24 and Second Schedule of the Ordinance, theGovernment may quash proceeding under section 50 of the Ordinance if anythingdone or anything intended to be done is not in conformity with law orinconsistent, or contrary to the national policy. The resolution is liable tobe struck down.

Abdus Sobhanvs Secretary 40 DLR 136.

Upazila Parishad Chairman and Members (Resignation, Removal and Vacation of Office) Rules, 1986

UpazilaParishad Chairman and Members (Resignation, Removal and Vacation of Office)Rules, 1986

Section 28 and rules 4 and 8—

Removal ofChairman—Special rules provided for removal of Chairman because the UpazilaParishad Chairman is the only elected person—section 28 is not retracted to thebusiness of removal.

Abdul MannanBhuiyan vs Monirul Huq 41 DLR (AD) 116.

Upazila Parishad (Election of Chairman) Rules, 1983

UpazilaParishad (Election of Chairman) Rules, 1983

Rule 14—

Acceptanceof nomination paper —Question of waiver of right to challenge— The relevant lawdoes not provide for any appeal against acceptance of a nomination paperrelating to election of the Chairman of an Upazila Parishad. The acceptance ofa nomination paper which is disputed is riot a pre-election dispute but anelection dispute and can be agitated before the Election Tribunal and before noother forum.

Yakub (Md)Ali Howlader vs Abdur Rob Munshi 43 DLR 586.

Rule 27—

ElectionCommission's authority to order repolling—In an appropriate case when there arecontradictory reports and materials before the Election Commission aboutadjournment of poll and submission of result by the Presiding Officer, theElection Commission has the power either to direct repoll or to directacceptance of the result. There is no question of exercise of plenary power bythe Election Commission in such a situtation.

Selim UllahBahadur vs Election Commission 44 DLR 304.

Upazila Parishads (Election of Chairman) Rules, 1983

UpazilaParishads (Election of Chairman) Rules, 1983

Rule 12—

Thus, it isheld that in the process of passing the no confidence resolution against thepetitioner there having been gross procedural defects, the respondent No. Iacted illegally and without any lawful authority in the purported exercise oftheir jurisdiction under section 13(2) of the Upazila Parishad Ordinance, 1982read with Rule 12 of Upazila Parishad Rules, 1986 removing the petitioner fromthe office of Chairman Upazila Parishad by issuing Annexure "H" tothe petition and in consequence thereupon declaring the said office vacantunder section 14(l)(b) of the said Ordinance.

Monirul, Haqvs Secretary, Local Government & Rural Development 41 DLR 108.

Rule 44(1)(5)—

ElectionTribunal has no power to allow amendment of the election petition so as torelate back to the date of filing of the election petition.

Thusalthough the Election Tribunal has the limited jurisdiction to allow amendmentof the election petition, it has no power to allow any amendment, so as torelate back to the date of filing of the election petition. It is so becausesub-rule (1) of Rule 44 prescribed the limitation of30 days next after thepublication of the result in the official gazette to file an election petitionand sub-rule (5) specifically provides that an election petition shall setforth the ground on which the petition is fixed and the relief sought. In otherwords, the ground for the election petition and the relief sought must bestated within the period of limitation.

ZulfiquarAli Bhutto vs Bangladesh 41 DLR379.

Rules 47 & 48—

AlthoughRule 47 of the said Rules provides that the election petition shall be tried asnearly as: may be in accordance with the procedure for the trial of suits underthe Code of Civil Procedure and Rule 48 provides that the Tribunal shall haveall the powers of a Civil Court trying a suit under the Code of Civil Procedureand shall be deemed to be a Civil Court within the meaning of sections 480 and482 of the Code of Criminal Procedure, it is now well—settled that the ElectionTribunal is not a Civil Court constituted under the Civil Court Act.

ZulfiquarAli Bhutto vs Bangladesh & others 41 DLR 379.

Vagrancy Act, 1950

Vagrancy Act[LXXIV of 1950]

Section 2(a)—

Mere roamingaround in any area would not bring the sex—workers within the mischief ofsection 2(9) of Vagrancy Act so as to adjudicate them as vagrant unless one isfound to be a vagrant and other conditions for the purpose are complied with.

BangladeshSociety for the Enforcement of Human Rights (BSEHR) and others vs Government ofBangladesh and others 53 DLR 1.

Section 4(1)—

BangladeshSociety for the Enforcement of Human Rights (BSEHR) vs Government of Bangladesh53 DLR 1.

Value Added Tax Act and Rules of 1991

Value AddedTax Act [XXII of 1991]

Sections 3, 5, 15, 31 & 73—

Value AddedTax as introduced in Bangladesh is an indirect Tax in place of Sales Tax andBusiness Turnover Tax to simplify the taxation system. Under the VAT scheme theBangladesh Telegraph and Telephone Board being a registered taxable personproviding to collect the value added tax from its subscribers, including thepetitioner, and has further responsibility to deposit the tax thus collected tothe VAT account of the Government.

Dr AhmedHusain vs Chairman, Bangladesh Telegraph and Telephone Board, Dhaka 50 DLR 115.

Sections 3 & 5(5)—

Someservices as noticed may have to be rendered within the country but there is noclear—cut demarcation as to the length of service rendered within the countryand the service rendered outside the country and unless that is determined VATcannot be levied even if it is permissible under the VAT Act on the ground ofuncertainty and ambiguity.

IntertekTesting Services International Limited and others vs National Board of Revenue55 DLR 691.

Section 9—

A creditmechanism is created under section 9(1) for a taxable person to recover the taxthat has been charged on the inputs coming from business. Any excess payment ofthe tax only leaves that amount of money temporarily in the hands of theGovernment. It must be paid back to the taxable person.

Dr AhmedHusain vs Chairman, Bangladesh Telegraph and Telephone Board, Dhaka and others50 DLR 115.

Section 42—

Since therespondents did not dispute the fact that the declaration of price was filed on11-4-1994 and the same was accepted by the authority and that the petitionerhad paid VAT regularly on the basis of declaration no further fact is requiredto be determined. The question involved in this application being purely aquestion of law and the impugned demands being ex facie illegal, this writ petitionis maintainable.

Oram Limitedvs Commissioner of Customs Excise and VAT Commtssionerate 53 DLR 373.

Section 45—

Prior toreopening of the assessment the petitioner was entitled to a notice to showcause as to why the assessment against the petitioner should not be reopened onthe alleged ground of evasion of taxes.

Foto FastColor Lab vs Bangladesh & others 52 DLR 533

Section 55(1)(2)—

Thepetitioner having not lodged written objection as contemplated undersub-section 3 of this section against the impugned demand of tax he is notentitled to the show cause notice against the recovery of tax as contended.

EasternChemical Industries Limited vs Government of Bangladesh 48 DLR 84.

Section 67(1)—

WahidullahMajumder vs Bangladesh and others 49 DLR 400.

Value AddedTax Rules, 1991

Rule 3(2)—

The specificcase of the petitioner being that the declaration submitted by them wasaccepted by the authority and they paid VAT regularly have not been denied bythe respondent in the affidavit-in-opposition we have no hesitation but toaccept the case of the petitioner.

Oram Limitedvs Commissioner of Customs Excise and VAT Commissionerate 53 DLR 373.

Vested and Non-Resident Property Administration Ordinance, 1974

Vested andNon-Resident Property Administration Ordinance [V of 1974]

Section 10—

Alegislative change has taken place and non—resident has been given a right todispose of its property. Ordinance No. V was converted into Act No. 46 of 1974.

RahimaAkhter vs AK Bose 40 DLR (AD) 24.

Village Courts Ordinance, 1976

VillageCourts Ordinance [LXI of 1976]

Section 3—

Thecumulative effect of the provisions made in the Ordinance and the Rule is thatthe amount of loss claimed by the complainant vests jurisdiction in theCriminal Court or in the Village Court as the case may be and not the findingof the Court as to the amount of loss inasmuch as nowhere in the Ordinance orin the· Rules there is anything to show that the finding of the Court vestsjurisdiction in it.

Kazi MotiurRahman vs Din Islam 43 DLR 128.

Section 3—

Thejurisdiction of the Court is conferred by law and it never depends upon theconsent of the parties. It is thus evident that the Assistant Judge actedillegally and without jurisdiction in passing the impugned decree.

Rokeya Begumvs Md Abdur Rahman 50 DLR 271.

Sections 3 and 8—

Unanimousdecision of a Village Court under challenge in civil Court—Whether plaintcould be rejected in view of finality of decision of the Village Court—In theface of allegation in the plaint that the respondents did not nominate theirrepresentatives in the Village Court the plaint cannot be rejected. Todetermine the truth of this allegation evidence is necessary and this can beavailable only in the course of trial of the suit.

Kazi MobarakAli vs Mohammad Yeasin Majumder 43 DLR (AD) 171.

Rule 3(2)(e) & (f)—

'Thecumulative effect of the provisions made in the Ordinance and the Rule is thatthe amount of loss claimed by the complainant vests jurisdiction in theCriminal Court or in the Village Court as the case may be and not the findingof the Court as to the amount of toss inasmuch as nowhere in the Ordinance orin the Rules there is anything to show that the finding of the Court vestsjurisdiction in it.

Kazi MotiurRahman vs Din Islam 43 DLR 128.

Section 8—

Case againstVillage Court's decision—Where the Village Court makes its decision by a majorityof four to one, it is final and no case against such decision lies before theMunsif. In this view the Subordinate Judge acted without jurisdiction .inentertaining the appeal from the order of the Munsif.

MafizurRahman vs Joynal Abedin 44 DLR 158.

Section 8—

High CourtDivision cannot in exercise of powers under section 561A CrPC interfere with anorder passed by a Village Court or the Sub-Divisional Magistrate under section8 of the Village Courts Ordinance.

Sydul Haquevs Abul Kashem 38 DLR 14.

Section 8(3)—

There is noexpress provision in the Ordinance barring the jurisdiction of a civil Court toquestion the legality or propriety of the Village—Court's decision—Respondentsin a civil suit alleged that they did not nominate any representative but theChairman concerned out of grudge brought two of his men and showed them beingnominated by the respondents in Village Court—Appellate (Defendant) proceededfor rejection of the plaint in the face of these allegations—Plaint in civilsuit cannot be rejected—To decide the truth of the matter evidence is necessarywhich can be available only in course of trial of the suit which is prima faciemaintainable.

Kazi MobarakAli vs Mohammad Yeasin Marumder 41 DLR (AD) 6.

Waqfs Ordinance, 1962

WaqfsOrdinance [I of 1962]

Section 2(10)—

In theabsence of enrolment of a property as Waqf the Administrator cannot treat thesame as "waqf by user."

In theinstant case neither the Mutwalli of the mosque nor persons interested in themosque filed any application under section 47(2) for enrollment of the mosqueas waqf. For want of enrolment of the mosque as waqf under section 47(1) of theOrdinance neither the respondent No. 1 nor the respondent No. 2 had anysanction of law to make the impugned orders.

Surat Ali vsAdministrator of Waqfs 45 DLR 218.

Sections 27 & 32—

There is nopower given to the Waqf Administrator either under section 27 or 32 of theOrdinance empowering him to cancel a regular appointment of a mutwalli.

Abdul Hoque(Md) vs Md Abdul Gani alias A Goni 52 DLR 295.

Section 32—

There is noprovision in the Ordinance authorising the Administrator of Waqfs to appoint a3rd party to manage the Waqf Estate during pendency of the proceedings forremoval of the Mutwalli.

AbdulKhaleque Shah vs Administrator of Waqfs and others 49 DLR 427.

Section 32—

There was noscope of application of the provision of section 32(1) ofthe Waqf Ordinance forremoval of the petitioner from the office of mutawalli specially when noallegation was brought against him.

SerajuddinShah (Md) vs Secretary. Ministry of Religious Affairs and others 51 DLR 479.

Section 32—

Anapplication for removal of a Mutwalli may be filed by any person beinginterested in the Waqf property. There is no bar that once an application forremoval of the Mutawalli is rejected, a subsequent application cannot be filed.The principle of res judicata has no manner of applkation under the Ordinance.

Azizul Hoq(Md) vs Administrator of Waqf, Government of Bangladesh 54 DLR 561.

Sections 32 & 38—

Removal ofmutwalli—his right to be heard—by denying the mutwalli his right to be heardthe Administrator of Waqf has committed a breach of the mandatory provision ofthe Ordinance—The function of the Administrator in carrying out the enquiry isthat of a civil Court which only means that he is to act judicially.

Tabarak AliSikder vs Administrator of Waqfs 45 DLR 70.

Section 32(2)—

Suitchallenging removal of mutawalli—It is now well settled that no suit can bemaintained in the Civil Court challenging an order passed by the Administratorremoving a Mutawalli under section 32(2) of the Ordinance. The instant suit fordeclaration that the order of the Administrator removing the petitioner fromMutawalliship is illegal and not maintainable.

Md Yusaf vsBangladesh 42 DLR 521.

Sections 33, 56, 57—

The power ofthe Administrator to transfer a part of the waqf property is made limited andconditional. The underlining implied limitation must not be forgotten that thelaw was never intended to validate a transfer even with sanction, whichultimately results in injury, waste or loss of the waqf.

HafizuddinAhmed vs M Aslam Miah and others 55 DLR 95.

Section 34—

Merelybecause the respondent No.2 is still in service, the application under section34 of the IRO cannot be maintained. In addition, the Labour Court has to cometo a finding that has some existing right guaranteed to him by or under any lawor any award or settlement.

BangladeshBiman Airlines Corporation vs Chairman, Second Labour Court and others 52 DLR191.

Sections 34, 37 & 39—

Removal ofmutwalli —Section 37 gives the Administrator of Waqf an option either to removea mutwalli or to take over the waqf estate for its management and control or totake any other action as he deems fit. Section 37 is however to be read withsections 34 and 39. In the facts of this case the Waqf Administrator should nothave appointed a committee for management of the waqf estate in place of themutwalli.

Tobarak AliSikder vs. Administrator of Waqfs. 45 DLR 70.

Section 35—

DistrictJudge as appearing in sections 50, 35 and 43 of the Waqf Ordinance means aCourt and not a persona designata. As such, it is not District Judge alone butit includes the Additional District Judge.

AKM AbdullahHarun vs Additional District Judge and others 56 DLR 654.

Sections 35(1) and 50—

When apetition is presented before the District Judge challenging the decision of theWaqf Administrator that the property is Waqf Property, the former does notfunction as a Court of appeal—in dealing with such a petition he cannot refuseto take oral or documentary evidence.

Yar Ali Khanvs Moqbul Ahmed 45 DLR 147

Section 35(3)—

Petitionunder section 35(1) of the Waqfs Ordinance seeking a further decision from theDistrict Judge as to whether the Administrator of Waqfs was correct indeclaring the character of the land was fully competent and again as againstthe decision of the former the Second Miscellaneous Appeal before the HighCourt Division under section 35(3) of the Ordinance is also competent.

AfajuddinMollah vs Mobarak Ali Munshi 46 DLR 587.

Section 38—

This sectionempowers the Administrator of Waqfs and the District Judge to examine witnessand call for production of documents and issuance of process as provided in thecase of a civil Court under the CPC.

AfazuddinMollah vs Mobarak Ali Munshi 46 DLR 587.

Sections 38 & 32—

Removal ofmutwallihis right to be heard—by denying the mutwalli his right to be heardthe Administrator of Waqf has committed a breach of the mandatory provision ofthe Ordinance—The function of the Administrator in carrying out the enquiry isthat of a civil Court which only means that he is to act judicially.

Tobarak AliSikder vs Administrator of Waqfs 45 DLR 70.

Section 43—

Thepetitioner will continue to take part in the affairs of the Estate as a JointMutawalli in collaboration with the Chief Mutwalli after making over the chargeof the Waqf Estate to the Chief Mutwalli. No illegality and or irregularity hasbeen committed in issuing the impugned order.

Mohammad Alivs ADC (Revenue), Dhaka & others 53 DLR (AD) 27.

Section 43—

The appealas contemplated in section 43 could be heard and disposed of by an AdditionalDistrict Judge and no illegality has been committed in the case because thesame has been so disposed of by the Additional District Judge.

AKM AbdullahHarun vs Additional District Judge 56 DLR 654.

Section 44—

Petitionerwas substituted as mutwalli in place of his father who was appointed ad-interimmutwalli. By substitution petitioner cannot claim to have better status thanthat of his father—he was liable to be relieved any moment by theAdministrator.

SerajuddinShah (Md) vs Secretary, Ministry of Religious Affairs and others 51 DLR 479.

Section 44—

Theprovision of this section overrides all the other provisions of theOrdinance—appointment of the official mutwalli by relieving the petitioner ofthe office of ad-interim mutwalli is not without lawful authority.

SerajuddinShah (Md) vs Secretary, Ministry of Religious Affairs and others 51 DLR 479.

Section 50—

Whether aplaintiff has the option to file a civil suit for declaration that a particularproperty is waqf property in view of the provisions of section 50 of theOrdinance.

SSM OsmanGhani vs Bangladesh 39 DLR 451.

Section 50—

Plaintiff-petitionercontends that the remedy provided in section 50 is cumulative, alternative orparallel. Civil Court's jurisdiction, he further contends, has not been oustedby the Waqfs Ordinance, 1962.

SSM OsmanGhani vs Bangladesh 39 DLR 451.

Section 50—

Thejurisdiction of the Administrator and the District Judge or any civil Court arenot parallel, alternative or cumulative and that power under section 50 of theWaqfs Ordinance provides for art adequate and sufficient relief in theproceeding . to decide whether the particular property is Waqf property or not.

AfazuddinMollah vs Mobarak Ali Munshi 46 DLR 587.

Section 50—

If thedispute as to the waqf character of the property is raised either before or atthe time of enrolment or after the enrolment the jurisdiction to decide thewaqf character is with Waqf Administrator.

Mokbul Ahmedvs. Shamsul Rashid and others 49 DLR 18.

Sections 50 and 64(1)—

TheAdministrator of Waqfs having powers to determine the question as to nature ofwaqf property to the exclusion of the jurisdiction of Civil Court should nothave exercised power casually taking greater care and caution in holding thatthe petitioner is a trespasser.

Abdur RashidLahi vs Mohd Yunus Gazi 40 DLR 428.

Sections 50 & 102—

Suii againstAdministrator's decision holding the disputed property to be Waqfproperty—After hearing the parties the Administrator arrived at the findingthat the petitioner was treating the disputed property as personal secularproperty though the same was waqf property and removed him from the office ofMutawalli of the Waqf Estate. The submission that the order holding thedisputed property to be waqf property in a proceeding under section 32(2)cannot be regarded as an order under section 50 can hardly be accepted. Thesuit for a declaration that the finding and decision of the Administrator inthis regard is not maintainable.

Md Yusaf vsBangladesh 42 DLR 521.

Section 51—

The Waqfestate is a purely Lillah waqf estate, and the appellant being the Imam of themosque and having the support of waqif's only surviving daughter was foundbetter suited to be appointed as Mutwalli for the management of the WaqfEstate.

MoulanaAbdul Mannan vs Halima Khatun 54 DLR (AD) 158.

Section 56(1)—

The court ofappeal fell in error of law in holding that the lease for a term exceeding 5years even with sanction of the Administrator cannot be valid.

MoulanaFariduddin Ahmed and another vs Md Kolimullah and others 55 DLR 49;

Section 64—

The remedyof an appeal to the District Judge under section 64 (2) of the Waqfs Ordinanceis available to an aggrieved person only after his eviction by the DeputyCommissioner concerned has taken place.

Shahidullah(Md) vs Abdus Sobhan Talukder 50 DLR (AD) 146.

Section 64(2)—

There is noscope for any appeal under section 64(2) of the Ordinance against an order ofrejection of prayer for eviction of person passed by the Administrator ofWaqfs.

AfazuddinMollah vs Mobarak Ali Munshi 46 DLR 587.

Section 102—

The expressouster is attracted only after the Administrator has given a decision or order.

Undersection 102 of the Waqfs Ordinance, 1962 no decision or order of theAdministrator shall be questioned in any suit or other proceeding in any Court,except as otherwise expressly provided in the said Ordinance. The expressouster is attracted only after the Administrator has given a decision or order.In the entire Ordinance we do not find any express ouster forbidding the CivilCourts to entertain any suit as to the Waqf character of suit—property. It isonly when the Administrator of Waqfs gives a decision or order in relation tothe same that the bar of section 102 is attracted.

In thepresent case, the plaintiff petitioner has not invoked the jurisdiction of theAdministrator under section 50 at all. The bar of section 102 is not expresslyattracted to his case.

SSM OsmanGhani vs Bangladesh 39 DLR 451.

Section 102—

In view ofthe case—law reported in 41 DLR 77, the general remedy of the suit undersection 9 of the Code of Civil Procedure is barred by section 102 of the WaqfsOrdinance and clause ( d) of rule 11 of Order VII, CPC appears to be applicablein the matter.

Shah Newaz(Md) vs Shah Wali and another 54 DLR 375.

Words and Phrases [Abandoned property - Benami Transaction]

Words andPhrases

Abandoned property

Law ofabandoned property can have no manner of application to the property inquestion-In the. absence of any contradiction the petitioner has succeeded inestablishing in this Court that he has prima facie an unassailable ownershipand enjoyment of the property in question.

Al-Haj MdHossain vs Bangladesh 39 DLR 265.

Abatement

Suit shallabate with the abatement of appeal- There is no finality to a judgment ordecree when it is under appeal and an appeal being a continuation of the suitthe whole suit becomes sub judice. So the judgment of the subordinate judgewhich is under challenge in the appeal is not final but it shall abate with theabatement of the appeal.

Bangladeshvs Abdul Wahid Sheikh 43 DLR 308.

Abatement

Martial Lawsin 1982- Abatement of Proceeding under Article 102 of the Constitution-Survivalof cause of action.

AnwaruddinBepari vs Assistant Commissioner (land) and others 49 DLR (AD) 48.

Abettor

An abettorin principle ought not to be awarded a higher punishment than that meted out tothe principal offender.

Major (Retd)Ashrafuddin Sekander vs State 50 DLR (AD) 108.

Absorption

The termabsorption in service jurisprudence means taking in or accommodating a publicservant who may have been found to be a surplus.

Lt Col(Retd) Nazimuddin Ahmed vs Bangladesh and others 47 DLR (AD) 87.

Academic Question

The Courtdoes not answer merely academic question but confines itself only to thepoint/points which are strictly necessary to be decided for the disposal of thematter before it. This should be more so when Constitutional questions areinvolved.

Kudrat-e-ElahiPanir vs Bangladesh 44 DLR (AD) 319.

Acquiescence

In itsproper legal sense, acquiescence implies that a person abstains frominterfering while a violation of his legal right is in progress-it operates byway of estoppel.

AklasurRahman vs Safarullah 42 DLR (AD) 189.

Acquittal ofnon-appealing accused-After the Court finds that the order of conviction as awhole is not maintainable in law even then the non-appealing accused should begiven the benefit of the order of acquittal. This is necessary to ensure thatthe fountain of justice is not stopped to the deprivation of any aggrievedperson so that everybody may share justice equally.

State vs.Mesbahuddin 49 DLR 245.

Action

The word"action" as used in Insurance matter must be given a most liberal andextended meaning-Action will not only mean a suit or other legal proceeding inCourt for recovery of damages, but it will also mean and include any legalaction pending before the authority who is under legal obligation to compensatethe damage under the insurance policy.

SadharanBima Corporation vs Sanjib Kumar Das 46 DLR 566.

Action for trespass

Even thoughthe plaintiffs case for compensatory/special damage in an action for trespassto land which is actionable per se fails, the plaintiff cannot be denied anydamages at all. He is in· that event entitled to nominal damages.

Serajullslam Chowdhury and others vs Md Jainal Abedin and others 49 DLR (AD) 164.

Admiralty Suit

Cause ofaction- Plaintiff was employed salvor and there was no negligence on his partto discontinue the salvage work, So, no doubt could be entertained about thejurisdiction of the Admiralty Court to try the suit-Prayer for rejection of theplaint on the plea of want of cause of action is rejected. The provision ofCivil Procedure Code for rejection of the plaint have not been made applicableto Admiralty Court nor the Rules of Admiralty Court provide for rejection ofthe plaint. Rather it is by invocation of inherent power of the Admiralty Courtit has to be returned. On facts and in law there is no case for rejection ofthe plaint in the instant case. Munim, CJ in the case of Saleh Steel IndustriesLtd. vs TSS Pacific Abeto and others 35 DLR (AD) 188 .

Observed"the views expressed above seemed be correct and I am of the opinion thatin the absence of express provision in the Code of Civil Procedure or Rules ofthe Admiralty Court it may exercise inherent power to return the plaint ifthere is no cause. of action triable by it or in the case it otherwise lacksits jurisdiction.

South AsiaShipping Ltd vs MV Tony Best 46 DLR 226.

Admiralty Suit

Collisionbetween two ships-Their liability when no ratio of responsibility could bedetermined considering the materials on record it is concluded that both thevessels were careless and negligent which resulted in the collision. Soapplying the principle that if the negligence of one party is such as to causethe other party to make a negligent mistake that he would not otherwise havemade, then both of them are equally responsible and liable.

SadharanBima Corporation vs Philoship Co. 44 DLR 31.

Admiralty Suit

Applicationfor arrest of ship as security for payment of monetary claim. There is nothingon record to show that the plaintiff controverted allegations of the owner ofthe vessel and then the application for attachment/arrest being belated isliable to be rejected.

Captain MdMobarak Hossain vs MT Dolores and others 47 DLR 80.

Admiralty Suit

It is forthe seller or supplier of the bunkers either to get credit before he makes anysupply or ensure that he will be paid from the time charterer or anybody elseon his behalf.

Marine OilBroking Company Pte Ltd vs MV Daizu Maru and others 55 DLR 471.

Adverse possession

Adversepossession in relation to co-sharer's title-amicable arrangement for separatepossession of joint land amongst co-sharers-such arrangement by itself doesnot amount to partition or exclusive possession to put an end to legal title ofother co-sharers by adverse possession.

RajendraNath Shaha vs Md Sonaullah Paramanik 42 DLR 393.

Adverse possession

Plea ofadverse possession in partition suit- The plaintiffs being co-sharers byinheritance are in constructive possession of the suit plots as the defendantsfailed to prove in any way that there was total ouster of the plaintiffs by anyof the defendants in assertion of their hostile title.

Lal Banoo vsMd Yasin Abdul Aziz 42 DLR 335.

Adverse possession

Title byadverse possession has to be specifically pleaded and proved.

MahaprobhuRam vs Gopal Ram 42 DLR (AD) 154.

Adverse possession

As amongstcoowners-Sole possession is not exclusive or adverse possession-Onus to proveadverse possession on the defendant showing open and hostile possession.

Hazera Begumvs Roushan Ara Begum 39 DLR (AD) 22.

Adverse possession

Apparentshow of adverse possession not sufficient to defeat the title of the realowner-What constitutes adverse possession.

Hazera Begumvs Roushan Ara Begum 39 DLR (AD) 22.

Adverse possession

If the signswere such that failure to notice them cannot be said to have involved lack ofreasonable vigilance.

Hazera Begumvs Roushan Ara Begum 39 DLR (AD) 22.

Adverse possession

Adversepossession must be within the knowledge of the co-sharer.

Hazera Begumvs Roushan Ara Begum 39 DLR (ADJ 22.

Adverse possession

Declarationof title on the basis of adverse possession-Material consideration is thestarting point of limitationStarting point is the date of agreement.Alternative title on the basis of adverse possession not having been pleadedand proved the decreeing of thesuit by the trial judge without reference to theplaint and evidence on records is illegal.

NiropomaRitchel vs Mohammad Abdul Jalil Mia 41 DLR 467.

Adverse possession

Someco-parceners of joint family property sell some distinct portion of theproperty to a stranger who began the possession claiming adversepossession-Court upheld his claim.

Hazera Begumvs Roushan Ara Begum 39 DLR (AD) 22.

Adverse Possession

Title byadverse possession, when it does not accrue-It is well settled possessionfollows title. Occasional surreptitious acts of possession behind the back ofrecorded owners, admittedly residents of a distant place and without evidenceof forcible entry in the suit land, cannot amount to adverse possession.

Madaris Alivs Biswamber Das 46 DLR 34.

Adverse Possession

Title byadverse possession-a co-sharer in sole possession transfers land in his possessionto a stranger and the latter possesses the land in exclusion of otherco-sharers in denial oftheir title for more than 12 years-by such ouster of theco-sharers the stranger purchaser acquires title by adverse possession.

Shah Alamand others vs Masuma Khatoon and others 45 DLR 541.

Adverse Possession

Exchangedeed executed in favour of the plaintiffs in 1964 in respect of the suit landhas not yet been registered but on the basis of this deed the plaintiffs havingbeen possessing the property for more then 12 years acquired title by adversepossession.

Rabia Khatunvs Bangladesh 46 DLR 447.

Adverse Possession

Title on thebasis of Will-Extinction of such title by adverse possession- The uncles of theplaintiff and their transferees have been in possession of the suit landcontrary to the provisions of the will dated 3.2.45 for more than 12 years andboth the executor and the plaintiff himself (on attainment of majority) stoodby until the suit for partition was filed in 1968. Thus it cannot be said thatthe finding as to adverse possession was wrongly made.

JogendraNath @ Govinda Sarker vs Amulya Chandra Sarker 44 DLR (AD) 147.

Adverse Possession

For adversepossession the possession required must be adequate in continuity, inpublicity and extent to show that it is possession adverse to .the competitor.It is not necessary that adverse possession should be shown to have beenbrought to the knowledge of the competitor and that it is sufficient that thepossession is overt and without any attempt at concealment so that the personagainst whom time is running out, if he exercises due vigilance, to be aware ofwhat is happening.

Abdus Sattarvs Abdul Rahman 44 DLR (AD) 100.

Adverse Possession

Title byadverse possession-ouster by co-heir=-When one coheir is found to be inpossession. of property, i.t is presumed to be on the basis of joint title. Thecoheir in possession cannot render his possessien adverse to the other co-heirnot in possession merely by any secret hostile 'animus between coheirs, theremust be evidence of open assertion of hostile title as coupled with exclusivepossession and enjoyment by one of them to the knowledge of the other so as toconstitute ouster.

Abdus Sattarvs Abdul Karim 48 DLR 582.

Adverse Possession

In order toclaiip title by adverse possession it is incumbent upon a person to prove thathe bas been in continuous possession of the disputed property over thestatutory period of 12 years in assertion of his hostile title.

Abdul JalilMiah (Md) vs Niropama Ritchil and others 49 DLR (AD) 61.

Adverse possession

Since thereceiptis not a deed· of title it could not confer title to the plaintiff underthe provision of section 54 of the Transfer of Property Act but hisuninterrupted adverse and hostile possession over a period of 12 years prior toalteged declaration of property as enemy property, the plaintiff has acquiredtitle by adverse possession.

SantipadaDatta and others vs Salish Cbandm Das and others 54 DLR (AD) 173.

Adverse Possession

Possessioncommencing lawfully can transform into an adverse possession and create titleby adverse possession.

Mahmood Alam(Md) and another vs Moklesur Rahman Bhuiya 54 DLR 523.

Adverse Remarks

Beforemaking observations and giving directions High Court Division acted illegallyin not giving any notice to the appellants which is a gross violation of theprinciple of natural justice and consequently, the remarks . should beexpunged.

Rajib KamrulHasan and 3 others vs State 53DLR (AD) 50.

Affidavit

Affidavit isto be sworn by the party against whom allegations of personal nature aremade-No permission was obtained from the court for swearing the affidavit byNityananda Das on behalf of the respondent No. 3 and the said affidavit was notverified by the said deponent. Such affidavit on behalf of the respondent isnot worth consideration. Since the respondent did not deny the allegationsagainst him the same remained uncontroverted.

Nund HudaMiah vs Dhaka WASA 44 DLR 527.

Affidavit

If it isfound that an application is supported by an affidavit of a person notcompetent to swear affidavit, the Court has no option but to throw out suchapplication.

Nabi Hossainand Bros vs Chittagong Urea Fertiliser Ltd 47 DLR 473.

Affidavit-in-opposition

Statement about detenu's character, expunction of- Inthe affidavit-in-opposition the moral character of the detenu ex-President wastaken into dispute when in fact the detenu never put his character as an issueclaiming to be of good moral character, any remark about his character isdirected to be expunged. This also relates to the names of females mentioned Inthe affidavit as his lady love.

MostafizurRahman vs Bangladesh 44 DLR 312.

Agency

Impliedauthority of professional agents---When no case of implied authority has beenmade out by the defendants to enter into a contract with buyer refixing theprice of the goods in question, then it was merely the duty of the agent tosubmit to his principal any offer of price which was made to him.

Sonali BankVS Gazi Abdur Rashid 44 DLR (AD) 235.

Agent and principal

Possessionof the agent is in law possession of the principal on whose behalf the agentpossessed it.

Firoza Majidvs Jiban Bima Corporation 39 DLR (AD) 78.

Allotment

The conceptof 'Allotment' is a new device of the modern government to give the right ofenjoyment of the government property to a person on the terms and conditionsmentioned therein which has its own distinct feature and uniqueness of its ownand cannot be equated with the term 'lease'.

BangladeshSugar and Food Industries Corporation vs Md Kashem and others 55 DLR. 350.

Analogous hearing

Appeal-Whentwo suits were being heard analogously and an order was passed in. respect ofdocuments relating to both, one appeal against such order was in accordancewith law.

CaptainShamsul Alam Chowdhury vs Shirin Alam Chowdhury 43 DLR 297.

Analogous trial

Ejectmentsuit and partition suit are distinct and different from each other. It is anerror of law and principle to direct analogous trial of such suits.

TambiaKhatoon vs Abdul Rouf Sowdagar 46 DLR 521.

Appeal, admission of

When appealis deemed to have been admitted though not formally admitted by the Court.

Nund Apservs HR Chowdhury 40 DLR 226.

Approbation and Reprobation

Thepetitioner asked for one thing and the respondent gave him another thing. Heasked for retirement and he was instead released from service which heconsidered illegal. This cannot be said to be a case of approbation andreprobation.

MofizurRahman vs Bangladesh Parjatan Corporation 44 DLR 436.

Arbitrator

AnArbitration is an alternative form of resolution of disputes between partiesand·, as. such, 'the Arbitrator must' havepower to: decideall the differences.and: disputes· between them. Where the .arbitration agreement does notprohibit the grant of foterest:......Pe.ndente lite interest or interest forpre-reference period; or whether it is silent about it, the arbitrator shouldallow interest on his award if such interest is demanded. In such cases, itmust be assumed that the arbitrator has got" implied power to awardinterest to do complete justice." As it appears, these principles andviews are based on a long series of decisions and views of the English Courts.

BADC vsKibria & Associattes Ltd. 46 DLR (AD) 97.

Arbitrator

Arbitratoris a persona designata, a functionary designated not by name but as one of a class.

BegumLutfunnessa vs N Ahmed 40 DLR 232.

Arbitration Award

Insured party's claim - Arbitratior's award on theamount of loss or damage-The insurers will have no right to challenge theamount awarded by the arbitrator after the award is made the Rule of the Court.The insurers will still have the option to repudiate the liability on theground of breach of warranties or condition-Cause of action of the insuredagainst the insurers is complete only when there is repudiation of liability topay after the arbitrator has made his award or the award has been made a Ruleof the Court.

DaulatpurTraders & Co Ltd vs Eastern Federal Union Insurance Co Ltd 42 DLR 125.

Artha Rin Adalat

It is not afull-fledged civil Court with all the power and jurisdictions of a civil Court.It is a civil Court of defined. and limited jurisdiction.

Sultana JuteMills Ltd. vs Agrani Bank 46 DLR (AD) 174.

Attestation

Attestatingof a deed by a witness - to what extent the man attestation thedeed-acquiesces-in its contents and estopped from denying what he seeks to;[Evidence Act. (1 of 1872) section 116]

SaishChandra vs Chaueswari Debi 38 DLR (AD) 283.

Audi alteram partem-

Show-causenotice to be served when a step contemplated to interfere with .the right toprinting is going to be taken.

Waliul Barivs District Magistrate 38 DLR (AD) 256.

Back Wages

Thepetitioner is out of employment for the last 18 years, So he cannot be allowedfull back wages for such. a long period as the same will cause hardship to theemployer. Respondent No.2 is directed. to reinstate the petitioner in his servicewith 50% back wages within 60 days.

Azizul Huq(Md) vs Chirman Labour Court Khulna and others 527.

Bank Guarantee

There is nolaw by which a party to a contract may insist that payment should be madeaccording to its dictates.

BengalCeramic Industries Ltd vs Chairman, Petro Bangla & others 53 DLR 516.

Bank'sguarantee to the extent of the plaintiffs' claims-Since a decree has beenpassed against the defendant No. 1, the ship, and the owners of the ship havegiven a bank guarantee to the extent of the claim in suit, in accordance withthe Admiralty Rules 12, 17 and 33 read with Original Side Rules 11, 13 and 15 adecree passed against the defendant No. l can be adjusted against the said bankguarantee furnished by the owners of the ship. But the adjustment against thebank guarantee shall be limited to the extent of the decree passed in favour ofthe plaintiffs in respect of stevedoring and lightering charge.

BCIC vs MrKavs Alkyon 38 DLR 209.

Bankers and Customer

A bank'srelationship with a customer, who deposits money, is essentially a contractualone. A bank is neither a bailee, nor a trustee of the customer's money, but asthe· House of Lords described in Foley vs Hill (1884 2 HL Case 28 and the Courtof Appeal stated in Joachimson vs SwissBank Corp. (Supra), is simply a debtor to his customer and remains bound torepay the debt in accordance with the terms of the contract.

Islami Bankvs Dewan Md Yusuf 55 DLR 624.

Banking

MoazzalSystem of Transaction - Moazzal system of transaction is a simple transactionwhereby the bank on credit sells certain properties to the customer on a fixedprofit and the purchaser-rs required to repay the amount agreed within thestipulated time.

Islami BankBangladesh Ltd vs Shohag Medicine Supply and others 52 DLR 571.

Bar & Bench

Both a judgeand an advocate are engaged in serving the cause of and promoting justice,together they form a team. The team spirit will be absent if their relationshipis not founded upon mutual respect, trust and confidence.

Bibhu RanjanDas vs Hakim Ali and others 53 DLR.

Benami

Long andcontinued possession of the parties trying to set up benami though an important element forconsideration does not raise any presumption in favour of benami.

Ala Meah vsAli Ahmed 40 DLR 26.

Benami Transaction

Certainingredients of benami transaction like motive & source of money for kabalaare required to prove it.

Mahmudul Huqvs Mst Golap Mia 41 DLR 314.

Benarni Transaction

Apart fromthe source of the consideration, other relevant elements for benami transactionare the position including the relation of the parties, the subsequent conductof the parties including· their dealings with the property, custody of thedocument and the motive behind the transaction.

MonjururRahman vs Dr Naimur Rahman 50 DLR 266.

Benami Transaction

It isagaisnt normal human conduct that the father would buy land in the name of hisdaughter even after her marriage.

Rupe JahanBegum and others vs Lutfor Ali Chowdhury and others 49 DLR (AD) 73.

Benami Transaction

It does notmean .that intention or motive should receive the only consideration by a courtof law for deciding the nature of the alleged transaction as a benamitransaction.

Bina Raniand another vs Shantosh Chandra Dey 51 DLR (AD) 81.

Benami Transaction

The burdenof proving that a particular sale is benami and the apparent purchaser is notthe real owner, always rests on the person asserting it to be so.

Ali Azam vsMd Majibullah 55 DLR 412.

Words and Phrases [Best Evidence Rule - Cost]

Words andPhrases

Best Evidence Rule-

Facts ofeach particular case will determine it-In this case before me the defendant wascalled upon by the lower appellate Court to produce any document which was inits opinion decisive for deciding the issue. The facts of the case cited by thepetitioner are quite distinguishable and the principle laid down therein has nomanner of application to the instant case. As I have already indicated that hisfather was known sometimes as Ahmedur Rahman and as there was material onrecord viz the Certificates given by the member and the Chairman before thelower appellate Court to hold to that effect, I do not consider that the bestevidence were withheld. Facts of each particular case will determine what isthe best evidence for that case. It seems to me that the lower Court reliedupon the certificates to be the best evidence rightly.

Nurul Apservs Hafizur Rahman Chowdhury 40 DLR 226.

Bill of Lading-

Efficacy ofa Bill of Lading-Transfer of goods by endorsement in a Bill of Lading-Whetherby the transaction by endorsement in a Bill of-Lading the property in the goodspasses or not may not be--ire_~Jroln doubt but this much appears to be settledth~t-im endorsee is at least entitled to the possession of the goods on thebasis of a duly endorsed Bill of Lading.

Bangladeshand Abu Taleb vs Anis & Co. &others 44 DLR (AD) 65.

Bill of Lading –

The CharterParty Agreement having not been incorporated or mentioned in the bill oflading, it will be unjust to saddle the consignee with any conditions thereof.

SamsunShipping Corporation vs Hossain and Sons and others 47 DLR (AD) 31.

Board of Residence & Discipline –

Universityauthority stands in the position of loco parentis to its students and is notrequired to record evidence against delinquent students in their presence noris required to give the delinquent students opportunity to cross-examine suchwitnesses who deposed against them.

Subasish Das(Bobby) and three others vs Bangladesh University of Engineering and Technologyand others 51 DLR 563.

Body Corporate-

The RedCrescent Society is a body corporate which is distinguishable from othervoluntary societies or associations.

Asaduzzamanvs Bangladesh 42 DLR (AD) 144.

Bohmong Chief –

Successionto Bohmongship is regulated by fitness and age rather than priority ofdescent. The eldest surviving male relative by male line of descent cannot succeedthe late Bohmong chief on the ground of seniority alone.

Aung ShwePrue Chowdhury vs. Government of the People's Republic of Bangladesh andothers 49 DLR 217.

Bohmong Chief –

The Courtwill only inquire whether the selection has been made following the tradition,custom and usage which goven the selection in question. If so made thejudiciary will not intervene. If extraneous considerations have influenced theexecutive decision the Court has certainly the power to declare the selectionto have been made without lawful authority, all the more so, because Governmentwill also not deny that the susceptibilities of the tribal people should not beignored.

Aung ShwePrue Chowdhury vs Kyaw Sain Prue Chowdhury 50 DLR (AD) 73.

Bonafide require-

"Bonafiderequire', 'desire', 'must have'. Md Chand Mia Sawdagar vs SMA Rahman 37 DLR266.

Boycott –

It meansbreaking of relationship -A boycott is a refusal to have contract with a personor a deliberate breaking of a relationship to apply pressure to force thesettlement of a dispute. A boycott may also be an attempt to discourage othersfrom having personal contact with the primary object of the action. Or aboycott may be an attempt to discourage others from handling a product on whicha dispute centres.

SpecialReference No. I of 1995. 47 DLR (AD) 111.

Circular –

Governmentcircular has got compulsive effect in between its maker and persons upon whomthe same is applicable.

Ezahar AliMondol & other vs Golam Rasul & others 45 DLR 653.

Circular –

A circularreferring to no law on the strength of which it was made is no substitute forlegislation by which tax can be levied.

PhilipsElectrical Company Ltd vs Commissioner of Taxes 45 DLR 190.

Circular –

Execution ofdocument in an Exchange case-After a deed of settlement was executed by acompetent officer of the government whether it could take the plea that theofficer had acted without its authority-Under the provisions of Act XLV of 1974a vested property can be transferred by the Government or by such officer asthe Government may direct. The Government having directed the ADC (Rev) to takenecessary action in the matter and in view of circulars on the subject, thereis no room for doubt that the ADC was duly authorised to execute and register thedeed of settlement. The order setting setting aside the deed is thereforewithout lawful authority.

Muzaffar Alivs Bangladesh 43 DLR (AD) 137.

Citizen –

Citizenmeans a person who is a member of an independent political community havingrights and obligations under the constitution and law of the country:

Bangladeshvs Prof Golam Azam 46 DLR (AD) 192.

Clean Hands –

The doctrineof clean hands is both an essential part of equity and of law (1892) 2 QB 147).

Ataur Rahmanvs Bangladesh 46 DLR 307.

CMLA –

Any orderviolating the order of the CMLA, the supreme authority of the country at therelevant time, cannot be sustained as a valid order.

BangladeshShipping Corporation vs Raquibuddin Ahmed 46 DLR 470.

Court's Decision –

A Court'sanxiety in decision-making must be limited to the question of facts and law andthe interest of justice in the circumstances of a particular case.

Diverseconsequences may follow from a decision. A Court may not have the prescience toforesee the imponderabilities of the future. While acting under the law aCourt's anxiety in decision making must be limited to the questions of factsand law and the interest of justice in the circumstances of a particular case.It should not brook any doubt while making a decision. And it should not alsohave any conceit that its is the perfect decision.

Bangladeshvs Prof Golam Azam 46 DLR (AD) 192.

Company –

Winding uporder of a company must be passed on the basis of subsisting facts and not onwhat they had been in the past.

MotiurRahman vs May Industries Ltd 37 DLR 41.

Company –

The factthat one of the shareholders has a preponderating voice in the company isitself not a good reason for winding up. Non-payment of dividend regularly isalso no ground for winding up of a company.

MotiurRahman vs May Industries Ltd 37 DLR 41.

Company Matter –

Review-TheCompanies Act and the Rules framed thereunder (which were framed by theCalcutta High Court under section 246 of the Companies Act and are beingfollowed by this Court) have not made the provisions of Order 47 rule I of theCode of Civil Procedure applicable for review by the Company Court.

Tahmid Ahmedvs Jalaluddin Jafar Ali Husein 51 DLR 483.

Company Matter –

Act or actsdone prior to the incorporation upon ratification by the Company subsequent toits incorporation is always deemed to be the act of the Company.

CapitalTower limited vs Mirpur Mazar Cooperative Market Society Limited and others 56DLR (AD) 8.

Compensation –

High CourtDivision cannot confirm the trial Court's assessment of compensation merely"for ends .of justice". For assessment of compensatory/special damageis a legal exercise based on evidence on record and not an exercise incompassion and sympathy.

SerajulIslam Chowdhury and others vs Md Jainal Abedin and others 49 DLR (AD) 164.

Compensation –

There musthave to be tangible grounds and calculable evidence for ascertaining moneycompensation etc. and it is the plaintiff who has to provide these. Thedefendant has no obligation in that behalf. In a suit for compensation anddamages any direction for delivery of possession of the property as has beendone in this case is out of point.

Governmentof the People's Republic of Bangladesh and another vs Hosne Ara Begum 49 DLR(AD) 127.

Complete Justice –

The words"complete justice" do not yield to a precise definition. Cases vary,situations vary and the scale and parameter of complete justice also vary.Sometimes it may be justice according to law, sometimes it may be justiceaccording to fairness, equity and good conscience, sometimes it may be in thenature of arbitration, sometimes it may be justice tempered with mercy,sometimes it may be pure commonsense, sometimes it may be the inference of anordinary reasonable man and so on.

NationalBoard of Revenue vs Nasrin Banu and 5 others 48 DLR (AD) 171.

Conjugal Rights –

In a suitfor restitution of conjugal right and declaration that divorce pronounced bythe wife is illegal such direction for restitution of conjugal right is wrong andunenforceable in law. Such direction in matters of relationship between man andwife no longer holds good and is opposed to the principles laid down inArticles 27 and 31 of the Constitution.

SherinAkther and another vs Md Ismail 51 DLR 512.

Contempt Matter –

Theapplication for contempt proceeding against the Prime Minister is disposed ofwith the observation that nothing can be more embarrassing if the ChiefExecutive chooses to speak to the press involving the Chief Justice. Indeciding whether the facts call for a contempt proceeding, the AppellateDivision decides to opt for discretion-The Court expects more circumspection,understanding, discretion and judgment on the part of the Prime Minister inmaking off-hand remarks in respect of constitutional functionaries.

HabibulIslam Bhuiyan, President Supreme Court Bar Association 51 DLR (AD) 68.

Contempt of Court –

State vsShahidul Alam Chowdhury and two others 51 DLR 380.

Contractual Legislation –

If KhondakerMostaque Ahmed was forced by the killers of the President and others to makethe Indemnity Ordinance, it would be absolutely a malafide law which cannot beprotected and saved by the Constitution. It was absolutely without jurisdictionto pass such a law as the so-called law giver was not authorised by theConstitution or by any Martial Law Proclamation, Regulation or Order to makethe legislation being pleaded as a contractual legislation.

ShahriarRashid Khan vs. Bangladesh, represented by the Secretary, Ministry of Law andParliamentary Affairs and others 49 DLR 133.

Capitalized value –

"Capitalizedvalue", 'Lakhiraj" lands-There is no definition of "Capitalizedvalue" in the State Acquisition and 'Tenancy Act. Lakhiraj lands thatexisted in the Mughal period and continued through British rule upto theenactment of the State Acquisition & Tenancy Act ceased to exist.

Even ifpreviously there were contrary provisions in any law or in any entry in recordof rights prepared under such law, they would be of no avail in view of theopening words of section 22(1) of the Act, notwithstanding anything containedin any other law for the time being in force.

Bangladeshvs Zeenat Textile Mills 40 DLR (AD) 189.

Cause of action –

Meaningof-It is synonymous with the right to sue.

Abdul GafurSikder vs Mst Shafia Khatun 41 DLR 500.

Charter party and bill of lading –

Where thecharter is also the shipper, the rights of ship-owner and character as suchwill be governed by the charter-party alone. The bill of lading cannot vary oradd to the terms of the charter party unless it contains an express provisionto that effect.

BCIC vs MVKava Alkyon 38 DLR 209.

Chitta –

Chitta, nota public document when created by Government having interest in the land.Chitta, Cadastral-survey record. Evidentiary value of some record of rightsprepared one after another.

Abdul Hafezvs Lal Meah 38 DLR 327.

Civil Court –

A civilCourt conducting civil proceedings is not necessarily a court subordinate tothe High Court Division.

Md Salimvs Zaker Ahmed 39 DLR 306.

Company matter –

Court exdebito justiciae can pass appropriate order for mitigating oppression.

MotiurRahman vs May Industries Ltd 37 DLR 41.

Consignee –

Consigneenot aware of the charter party’s Bills of lading will govern relationship.

BCIC vs KavaAlkyon 38 DLR 209.

Contract –

Breach ofcontract-Plaintiff to prove mutuality of agreement. The plaintiff shouldsucceed in an action for breach of contract if he proves that an agreement hasbeen reached under which the defendant has made him a definite promise; that theparties thereby intended to effect their legal relations and that the defendanthas broken his promise though it was supported by the presence ofconsideration.

HN FabricsLtd vs Mallick Textile Industries 37 DLR (AD) 126.

Contract –

Specificperformance of contract - No decree can be granted where terms of contract areuncertain.

HN FabricsLtd vs Mallick Textile Industries 37 DLR (AD) 126.

Contract –

Specificperformance of contract - Grant of decree for specific performance of, isdiscretionary with the court.

Ram ChandraDas vs Md Khalilur Rahman 37 DLR (AD) 21.

Contract –

Omission ofthe word "accepted" which is the very foundation that couldconstitute the contract be filled in evidence-As the foundation of the contractis missing in the plaint, the contract is not a concluded one and as such notenforceable. Abul Hossain Khan vs Md Shamsuddin Khan 41 DLR 415.

Contract –

Cancellationof a contract does not require a show-cause notice. It is guided by the termsof the contract and if there is a right reserved in the contract to cancel, thesaid power can be exercised. It can also be cancelled under the relevantprovisions of the Contract Act but in 'either case it would not call forhearing-If the liability arises under a contract, the authority can act,without mentioning its statutory power. Fisheries are being leased out by theGovernment not under any statute but under the instruction as contained in theState Manual.

SarpingMatsajbi vs Bangladesh 39 DLR 78.

Contract –

An agreementwhich would defeat provision of law cannot be enforced.

DCCI vsSecretary 39 DLR 145.

Contract of carriage when governed by charter-party –

When thecharterer is the shipper of the cargo contract of carriage would be governed bycharter-party alone for determination of liability as between the shipper andthe owner. Contract of carriage as between the shipper and the owners would begoverned by the terms of the charter party.

BCIC vs MVAlkyon 38 DLR 209.

Contract –

Rate ofinterest-The contract being on the basis of sanction letters which providedrate of interest at ·5% and the deed of mortgage being merely a securityensuring payment of loan money unilateral increase of rate of interestsubsequently is unauthorised and illegal.

BHBFC vsAbdul Mannan 38 DLR 338.

Contract to enter into a contract –

The Phrase"contract to enter into a contract" explained- "The true meaningof the phrases is that the Court will not enforce a contract to make a secondcontract, part of the terms of which are indeterminate and have yet to beagreed, so that there is not any definite contract at all which can beenforced, but only an agreement for a contract some of the terms of which arenot yet agreed."

NN FabricsLtd vs Mallick Textile Industries 37 DLR (AD) I26.

Contract loan –

Contractwith Bank Liability of the debtor's to pay the creditor cannot be by-passed orignored on the plea that the security on the basis of which the loan was takenhas ceased to exist or been destroyed.

Messrs MM Ispahanivs Sonali Bank 37 DLR (AD) 1.

Contract loan –

Guarantors'liability - Guarantor's personal liability for repayment of a loan, eventhough the principal debtor remains liable for the same-Creditor can sue theguarantors in preference to the principal.

Messrs MMIspahani vs Sonali Bank 37 DLR (AD) I.

Constructive possession –

“Constructivepossession" is not actual possession-actual possession of one person isdeemed to be possession of other co-sharers as well-Where a trustee has been inpossession under a trust which is void.

Hazera Begumvs Roushan Ara Begum 39 DLR (AD) 22.

Corporation –

Whether itwas within its right to refuse to allow the petitioner to re-join his serviceon expiry of privilege leaves Surrender of pay in lieu of notice period.

MA Mannan vsBiman Bangladesh Airlines 4I DLR 3I8.

Corporation –

Corporationwaived its right to discontinue the service of the petitioner by allowing himto resume his duties.

MA Mannan vsBiman Bangladesh Airlines 41 DLR 318.

Corroboration –

In the contextof realities the concept of 'independent corroboration' must be given a liberalconstruction and restricted meaning and it should not be rigidly sought forwhen some evidence worthy of credence is on record.

Nurul AlamChowdhury and another vs State 51 DLR 125.

Co-sharer in the holding –

"Co-sharerin the holding" and "co-sharer in one of the plots of thekhatian".

Sultan Ahmedvs Aktaruzzaman-tl DLR (AD) 1.

Cost –

When appealis preferred against an interlocutory order and the suit is awaiting trial itwould not be proper to award any cost at the present stage.

SarhindGarments Ltd vs. Glory Truth Industries Ltd and another 49 DLR 260.

Cost –

Thesubmission that the Government's case or anybody's case may not succeed for avariety of reasons but in awarding cost the Court should give some reason,otherwise it may appear to be arbitrary is quite acceptable.

Bangladesh,represented by the Secretary Ministry of Public Works vs Chairman, Court ofSettlement, First Court and others 51 DLR (AD) 87 .

Words and Phrases [Court's Decision – Duty of Court]

Words andPhrases

Court's Decision –

A Court'sanxiety in decision-making must be limited to the question of facts and law andthe interest of justice in the circumstances of a particular case.

Bangladeshvs Prof Golam Azam 46 DLR (AD) 192.

Counter claim –

Counterclaim against the plaintiffs on account of delay and detention of the shipcannot be entertained.

BCIC vs MVKavo Alkyon 38 DLR 299.

Court's Jurisdiction –

Naturaljustice - Court's jurisdiction to examine if any tribunal acted in accordancewith principles of judicial procedure.

Nur Mohammadvs Moulvi Mainuddin 39 DLR (AD) 1.

Court's Jurisdiction –

Even ifCourt's jurisdiction is excluded Court authorised to examine whether thestatutory tribunal has acted in conformity with the fundamental principles ofjudicial procedure.

Nur Mohammadvs Moulvi Mainuddin 39 DLR (AD) 1.

Court's Jurisdiction –

Court hasjurisdiction to examine whether the requisition has been validly made inaccordance with law-Rejection of plaint under Ordinance 7, rule 11 deprives theCourt from examining that question.

Nur Mohammadvs Moulvi Mainuddin 39 DLR (AD) 1.

Court's action - Right of appeal –

When plainthas been improperly rejected, remedy by way of appeal as against such rejectionno consolation.

Nur Mohammadvs Moulvi Mainuddin 39 DLR (AD) 1.

Court to render justice –

Courts torender justice according to law irrespective of the consideration that itentails suffering to a particular party.

Nur Mohammadvs Moulvi Mainuddin 39 DLR (AD) 1.

Criminal Justice –

It is hightime that the system of investigation of criminal case by the police aloneshould either be abandoned or completely reformed. Otherwise there is no chanceof retrieving the system of criminal justice from the malaise.

Ali Akbar(Md) vs State 51 DLR 268.

Cross-Appeal –

Interest wasspecifically prayed for in the plaint and specifically refused by the AdmiraltyCourt. The respondent filed no cross-appeal. Hence the prayer is rejected.

SadharanBima Corporation vs Bengal Liner Ltd and another 48 DLR (AD) 143.

Cross-objection –

There is noprovision for filing cross-petition for leave to appeal before the AppellateDivision.

Bangladeshvs Subash Chandra Das 46 DLR (AD) 63.

Current Charge –

It is wellsettled that allowing an officer to work in a higher post on current chargebasis is not a promotion but an additional charge for the time being and theofficer given such current charge can be reverted back to his original post atany time without assigning any reason and that by holding such current charge,the officer concerned does not acquire any vested right.

AM ZiaulHoque vs Government of the People's Republic of Bangladesh & otrs 56 DLR389.

Current Charge –

If anemployee is allowed to hold current charge of an additional post for more thanthree months, he will not be entitled to get additional allowance, unless theBoard permits, but the status of the additional post will not be elevatedthereby. The additional post will continue to remain a current charge, albeitirregularly, but it will not be converted into a substantive post for theholder thereof.

Mominul Huqvs Bangldesh 38 DLR 391.

Custom-Long user-

Whether userfor long will form a custom to the benefit of any-one if such user ispermissive-Courts below have to come to a finding that the user of the suitproperty (reservoir) was as of right or by way of agreement and not permissive.

Abdul JalilKhandaker vs Mohd Mokan 41 DLR 228.

Finding asto whether the user was uninterrupted and whether it was reasonable or notshould be made by the lower appellate Court-The customary right of theplaintiffs cannot be maintained as it militates against the sense of reasonableness.

Abdul JalilKhandaker vs Mohd Mokan 41 DLR 228.

Customary Right –

For acustomary right to obtain in a particular district or locality it must becertain and confined to that district or locality. The plaintiffs status isuncertain-Courts below missed this aspect.

Abdul JalilKhandaker vs Mohd Mokan 41 DLR 228.

Customary Right –

Customaryright is not an encumbrance-Long standing customary right cannot be negative byexecutive on the ground that it is an encumbrance.

Abdul JalilKhandaker vs Mohd Mokan 41 DLR 228.

Customary Right –

Lost Grantand Customary Right-Reasonableness is an essential element of a valid customand the period of ascertaining the reasonableness of a valid custom is the timeof its possible inception. Court is not preclued from examining otherdimensions of reasonableness.

MoniruddinSarker & others vs Nurul Huq Khan & others 40 DLR (AD) 143.

Cypress –

Doctrine ofCypress, when to apply-It may be necessary to use the trust money arising outof the sale proceeds to be used for similar purpose as contemplated in thetrust instrument by allowing the Doctrine of Cypres to come into play byallowing the University of Dhaka to use the same for the benefit of the femalestudents under the Universities in Bangladesh.

SWMSalehuddin, Administrator General (an application) Testamentary and Intestate44 DLR 268.

Dakhalkar-

What itstands for-ordinarily the word "Dakhalkar" in the record of right isno doubt indicative of a mere tenant-at-will without any transferable orheritable interest, but the word cannot be limited to a mere tenant-at-willunder all circumstances. The subsequent history and the attendant circumstancesare relevant facts to be taken into consideration in determining the characterof possession. The use of the word Dakhalker in the CS record is notconclusive.

RahimaKhatun vs Dally Rani Dasi 43 DLR (AD) 55.

Damages –

Measure ofdamages-The test of the measure of damages is not what the plaintiffs have lostbut what benefit the defendant obtained by having the use of the berth.

SerajulIslam Chowdhury and others vs Md Jainal Abedin and others 49 DLR (AD) I64.

Damage-

Short-landingof important goods, liability thereof-Failure to notify the plaintiff aboutstorage of 5567 bags in shed No. 5, plaintiff not responsible for not takingdelivery.

BangladeshRailway vs Messrs Chartering andShipbreaking Corporation 37 DLR (AD) 47.

Damage for short-landing-

"Landingin damaged condition'-Had the landing in damaged condition been notified toplaintiff, it could apply for survey about damages which had thus been deniedto it.

BangladeshRailway vs Messrs Chartering and Shipbreaking Corporation 37 DLR (AD) 47.

Debutter Property-

Once aproperty becomes a property of the Deity, which is immortal, it continues to bea property of the Deity for all times to come.

Hindu DetiyLakshmi Gobinda Jeu vs Deputy Custodian Enemy Property and others 51 DLR 300.

'Decision' and 'decide'-

what thewords mean-According to the Oxford Concise Dictionary "decision" means"the action deciding (a contest, question, etc) settlement, detennination,a conclusion, judgment, specially one formally pronounced in a court oflaw." The word 'decide' means "to settle a question in dispute, topronounce a final judgment.

The meaninggiven in the dictionary indicates that a decision finally settles acontroversy. This word is, however, susceptible of wider import covering bothinterlocutory and final orders.

AmalenduMuzzumder vs Selimuzzaman 39 DLR 140.

Decree-

Decreeagainst the ship-liability of other defendants having also been passed againstthem in respect of the decretal amount, they though not owners of the ship arepersons interested in the ship having given personal guarantee-Decree holderhas no right to realise collateral security involving immovable property.

Sonali Bankvs Bengal Liner 39 DLR 106.

Decree –

When it isnot possible to pass a decree against the delinquent party. Defendant Nos. l& 2, the principals in the present case arising out of collision betweentwo ships, were personally liable for the damage caused to the plaintiff's shipMV Zahirabad but they were not properly made parties in the suit. They were notgiven notices to their address in the foreign country. In their absence nodecree could be passed.

SadharanBima Corporation vs Philoship Co. 44 DLR 31.

Prayer ofthe master of the vessel to satisfy his claim of dues by encashment of the bankguarantee furnished by the owner of the vessel as security for satisfaction ofthe future decree to be made on contest of the suit cannot be accepted.

Captain JZASA Chowdhury vs MV Stern 46 DLR 172.

Decree –

Execution ofdecree in foreign country-Any decree of any Court in Bangladesh is enforceablein foreign country either as a foreign decree or by instituting a suit on thebasis of said decree in any foreign country.

Humayun MVohra vs ESPN Star Sports and others 55 DLR (AD) 99.

Decree obtained by fraud –

When adecree is obtained by a plaintiff practising fraud it is not necessary to filea separate suit for avoiding such decree.

Sultan Ahmedvs Md Waziullah 39 DLR 329.

Decree Execution of –

Theexecuting court becomes functus officio after execution of the decree.

A MotlibChowdhury vs Minor Bapi alias, Saiful Alim Chowdhury 38 DLR 231.

Deemed to be –

"Nowwhen a person is deemed to be" something the only meaning possible is thatwhereas he is not in reality that something, the Act of Parliament requires himto be treated as if he were.”

Begum MotiaAkhtar Khanam vs Shawkat Ara 42 DLR (AD) 26.

Deemed to be –

From the LawLexicon it appears that the word "deemed" generally means "takenprima facie to be", "taken conclusively to be", "supposedto be", "thought to be," "treat to be", etc. -When aperson is "deemed to be " something the only meaning possible is thatwhereas he is not in reality that something the Act of Parliament requires himto be treated as if he were."

Abu Taherand others vs Mst Razia Begum 37 DLR 18.

Delegation of power –

Delegationof power, when it is no delegation: The Election Commission arrived at adecision on the note which was processed by the Secretary of its office. Noexception can be taken to such procedure, because it could not be said that itwas the order of the Secretary. The order was one that emanated from theElection Commission.

BDHabibullah vs Election Commission 42 DLR (AD) 218.

Departmental Proceeding –

Adepartmental proceeding against an employee is competent besides a proceedingin a Court of law.

Governmentof Bangladesh vs Md Abdul Karim 47 DLR (AD) 146.

Departmental Proceeding-

The otherrespondent engineers are found-not amenable to any criminal charge under thelaw but their conduct as responsible officers leaves much to be desired. TheUniversity Authority may yet consider the advisability of a departmental proceedingto find out if there was any negligence of duty on the party of any of theengineers in the matter of receiving/checking the disputed pumps and issuingcertificate for payment.

State vs MdIqbal Hossain and others 48 DLR (AD) 100.

Disciplinary Proceeding-

In adisciplinary proceeding for negligence of duty or contravention ofinstructions, etc, no dishonest intention is required to be proved. Theliability in such cases is of an absolute nature.

Once it isfound that an employee is negligent or has contravened any instruction, heincurs the liability for punishment and strictly speaking there is no room forshowing any leniency even in the matter of punishment merely because hisdishonest intention was not proved. It can never be considered to be a goodexercise of discretion when a person is reinstated in an institution like abank by way of altering an order of dismissal from service when the authorityhad decided not to keep him in service apparently because he had lost theirconfidence which is so essential in a sentence than dismissal, that is,compulsory retirement which is also a major penalty under the Regulations andthe Tribunal should have taken recourse to the same if it felt that it wasnecessary to reduce the rigour of the sentence in the facts and circumstancesof the present case.

Sonali Bankvs Rahul Amin Khan 46 DLR (AD) 85.

Dismissal-

Dismissalfrom service is a serious matter and only a competent authority under the lawis entitled to pass an order of dismissal.

BangladeshShilpakala Academy represented by the Director General of the Academy vsShahidul Islam 50 DLR (AD) 1.

Dismissal & Termination-

Connotationof the words 'dismissal' & 'termination'-The two expressions namely,"dismissed on the ground of misconduct" and "termination ofservice on the ground of misconduct" have the same connotation. The word'dismissal' in its ordinary meaning connotes dishonourably removed or sent awayfrom service while the expression "terminable on grounds ofmisconduct" carries the same meaning and stigma.

Abdul Jalilvs BSEC 43 DLR 474.

Dissenting Judgment-

In ordinarycourse of Court's business a dissenting judgment is delivered immediately afterthe main judgment. It is desirable that the dissenting judgment should followimmediately from the one it is dissented from and the result of the case shouldalso be accordingly announced.

ABM QuabilAhmed vs Bangladesh 43 DLR (AD) 228.

District Judge –

The words'District Judge' occurring in Local Government (Union Parishads) Ordinance,1983-Status of District JudgeConflicting decisions as to the status of theDistrict Judge acting as an appellate authority under the Local Government(Union Parishads) Ordinance 1983 [38 DLR (AD) 172 referred to).

When aDistrict Judge has been defined as "the Judge of a principal Civil Courtof original financial institution. There was a less harsh jurisdiction" byusing this expression for constituting the election appellate tribunal andempowering to hear him in appeal for the decision of an Election Tribunal, itcannot be intended that he is to act as a persona designate.

MohammadJuljikar vs Abul Kamal Chowdhury 42 DLR (AD) 83.

Doctrine of lis pendents –

Mortgageexecution case pending-whether the transfer is hit by the Doctrine of LisPendents.

The transferwas made when FMA No. 69 of 1955 for setting aside the sale in MortgageExecution Case No. 51 of 1952 was pending and as such the transfer is hit bythe Doctrine of Lis Pendents also so far as half of the property representingMadhabi Lata's share is concerned.

Harun Motenvs Mahaluxmi Bank Ltd & others 41 DLR (AD) 8.

Doctrine of Severability –

The mainground for classification is to do justice to a large number of ad-hocemployees appointed during a particular period as a matter of policy as well asof necessity by giving benefit of continuous ad-hoc service. This benefit hasbeen equally given to both the petitioners and the respondents. So, thedoctrine of severeability is not applicable in this case. Moreover, a largenumber of ad-hoc appointees are involved in this process but only a few havebeen impleaded in the writ petitions.

Bangladeshvs Md. Azizur Rahman 46 DLR (AD) 19.

Doctrine of State Necessity-

PakistanSupreme Court had not totally over ruled the decision given in Dosso's case.The Court condemned the regime of General Yahya Khan and depicted him as ausurper. The Court declared the Martial Law proclaimed by General Yahya Khanillegal and assumption of power by him wholly unconstitutional, but it hasvirtually recognised the legislative and administrative acts done by Yahya Khanin the name of Doctrine of State necessity.

ShahriarRashid Khan vs. Bangladesh, represented by the Secretary, Ministry of Law andParliamentary Affairs and others 49 DLR 133.

Domestic Enquiry-

A court oflaw does not sit on appeal from the findings of a domestic enquiry committeeunless it is tainted with illegality, malafide or it acted beyond jurisdiction.

Abdus Salam(Md) vs University of Rajshahi & others 56 DLR 441.

Domestic Tribunal –

Labourmatter Opportunity of defence- The domestic tribunal is not a Court to followprocedures of the trial or enquiry according to the Civil Procedure Code. Inappropriate cases, considering the facts and circumstances thereof, such atribunal may arrive at a decision simply by questioning the accused andconsidering his explanation.

Bashir Ahmedvs BJMC. 44 DLR (AD) 267.

Domestic Tribunal-

The civilCourt is not competent to sit over the decision of the executive Committee ofthe respondent Club unless it is proved that it is in a breach of principle ofnatural justice and the decision is an act of bad faith and biased.

DelwarHossain Khan (Md) vs Dhaka Club Limited and antoher 48 DLR 407.

Domestic Tribunal-

Procedure-Theenquiry officer is not to follow the procedure of a trial by a Court, he may,in appropriate cases, arrive at a decision simply by questioning the delinquentofficer and considering his explanation.

Director,T&T Board, Dhaka vs Hasan Ahmed Bhuiyan 47 DLR (AD) 143.

Domicile-

Domicile isnot the same thing as residence. Residence implies a purely physical fact, thefact of just being present and living in a particular place, but domicile isnot only residence-it is residence coupled with intention to live indefinitelyin the place.

ProfessorGolam Azam vs Bangladesh 45 DLR 423.

Dower –

Unless anduntil the terms of the contract as to dower money is altered or amended ormodified by either of the parties even a Court cannot change the same.

ShahinurBegum vs. Md Minarul Islam Mondol @ Milon 49 DLR 567.

Domicile-

The domicileof origin is not a matter of choice or free will. It is received orcommunicated to a person at his birth by operation of law. The domicile oforigin is not lost by mere abandonment nor it is extinguished by mere removalanimo non revertendi. Overwhelming evidence is required to rebut thepresumption in favour of its continuance. The onus of proving that a domicilehad been chosen in substitution for the domicile of origin would be upon thosewho assert that the domicile of origin had been lost.

Bangladeshvs Prof Golam Azam 46 DLR (AD) 192.

Double marks-

Double marksindicating a vote for more than one candidate where only one candidate is notbe elected.

Md Shajahanvs Md Sadeq 38 DLR (AD) 275.

Duty of Court-

When aninjury is caused to a party due to any mistake or default committed by a courtor its officers, it is not only the right but also the duty of the court tocorrect its own mistake.

Keramat AliBhuiyan vs Ramizuddin Ahmed Bhuiyan 43 DLR (AD) 58.

Words and Phrases [Dying Declaration – Fundamental Rights]

Words andPhrases

Dying Declaration –

Due to non-examinationof any other inmates of the occurrence house mystery develops around the caseitself and the mystery remained unexplained and the mystery was not brought outby any way to make everything clear for proper understanding of what in fact·was lying at the depth of the issue. A dying declaration although a piece ofsubstantive evidence, has always been viewed with caution as the matter is notliable to cross-examination. It has to be judged in the light of surroundingcircumstances and common human experiences.

Daud Ali(Md) and others vs State 55 DLR 699.

Earnest Money-

Refund ofearnest money-Whether the purchaser it entitled to refund of earnest money withinterest in the suit for specific performance of contract- Purchaser isentitled to refund of earnest money with reasonable interest from the date ofwrongful withholding of the sum-The plaintiff prayed for refund of the earnestmoney in the appeal and it cannot be said that the defendant was wrongfullywithholding the sum in spite of demand. Plaintiff is not entitled to anyinterest upto the passing of the decree in this appeal. He will be entitled tointerest on the amount from the date of decree till realization.

SilverEstate vs Abdul Hakim Mia 43 DLR 360.

Easement of necessity-

Easementclaimed is apparent, continuous and absolute in terms of necessity. Suchnecessity is absolute without which the dominant tenement cannot be used atall.

Abdul Latifvs Attar Ali 42 DLR 115.

Election-

"Election"connects the process of choosing representatives by electorates in democraticinstitutions. The election process starts from the Notification issued by thecompetent authority (in a parliamentary election or bye-election, by theElection Commission) declaring election schedule and culminates in thedeclaration of result of election by a gazette notification.

MohmudulHoque (Md) vs Md and others 48 DLR (AD) 128.

Election-

Secrecy ofballot paper should not be disturbed only because the defeated candidate wantedto recount this.

Md Shahjahanvs Md Sadeq 38 DLR (AD) 275.

Election-

Re-countingof votes long after election, discouraged.

Md Shajahanvs Md Sadeq 38 DLR (AD) 275.

Election-

Onre-counting, it is found that the result has gone in his favour by somemysterious means. That is why re-counting of the ballot papers by a Tribunallong after the election should not be resorted to simply on mere asking by aninterested party.

Md Shajahanvs Md Sadeq 38 DLR (AD) 275.

Election –

Re-openingsealed packet, should not be resorted to unless very necessary.

Md Shajahanvs Md Sadeq 38 DLR (AD) 275.

Election –

Ballotpapers have special sanctity of their own and their secrecy should not beinfringed by reopening the sealed pakets unless the re-counting becomesindispensably necessary to determine the dispute.

Md Shajahanvs Md Sadeq 38 DLR (AD) 275.

Election –

Re-counting,if necessary, should be done by the Presiding Officer himself and on the spot.

Md Shajahanvs Md Sadeq 38 DLR (AD) 275.

Election –

Whenre-counting would become so necessary depends on circumstances in each case. Inthe absence of clear justifications, no recounting of votes. Ground work forre-counting must be prepared; re-counting should be refused if no prayer forre-counting had been made to the Presiding Officer who is alone empowered to recounton the spot either on his own motion or on requests of any candidate.

Md Shajahanvs Md Sadeq 38 DLR (AD) 275.

Election –

Re-countingof ballot papers by the Tribunal is not specifically provided in the ElectionRules.

Md Shajahanvs Md Sadeq 38 DLR (AD) 275.

Election –

Re-countingof ballot papers by the Tribunal is not specifically provided in the ElectionRules, but is falls within the inherent powers of the Tribunal to decide theelection dispute. In the instant case, the appellant or his representative didnot request the Presiding Officer for re-counting the ballot papers. TheTribunal found that the election was held and the ballot papers were counted inan orderly manner all through and no objection was raised on the spot beforethe Presiding Officer as to the counting of the ballot papers.

Md Shajahanvs Md Sadeq 38 DLR (AD) 275.

Election –

ElectionTribunal-Can pass an order for recounting of votes in case counting wasimproper.

Md ZiauddinBiswas vs District Judge 37 DLR 235.

Election-

Electiondisputes re-Union Parishad election-Authority to recount votes when can beinvoked .

Power tore-open ballot boxes and recount votes (by the Election Tribunal) not providedfor either in the Local Government (UP) Ordinance or the Union ParishadElection Rules, 1983 but just an outcome of the judicial decisions as clearlylaid down from time to time. The principle stated in the judgments of thehigher Courts of Jaw for recounting of votes underlines certain conditions,such as the Tribunal felt the necessity of counting the votes to satisfy itselfas to correct counting by the Presiding Officer or that the issue raised in theelection petition cannot be determined without recounting.

Abdul Haquevs Fazlul Huq 38 DLR 401.

When theTribunal comes to a definite decision against the elected candidate and otherson the substantive issue of corrupt and malpractices that it is entitled torecount, etc.

Abdul Haquevs Fazlul Huq 38 DLR 401.

Election case-

Allegationswhich are abandoned-Recounting of ballot papers. In election cases, it is oftenfound that a defeated candidate brings a number of allegations including vaguecharges of his opponent influencing the Presiding Officer, but ultimately failsto prove, or abandons, all the allegations and insists on only re-counting ofthe ballot papers.

Md Shajahanvs Md Sadeq 38 DLR (ADJ 275.

Election Law-

Well-recognizedprinciples of-Aggrieved person not to be permitted to ventilate his grievancesin derogation of the general interest of the people-Every remedy for wrong doneduring the election process is to be postponed to post-election stage.

MostafaKamal vs Md Habibullah 41 DLR 197.

Election Matter-

Recounting-Beforerecounting of ballot papers evidence should be led for foundation forre-opening of the ballot papers. But a number of dates having been fixed forrecording of evidence and the petitioner taken adjournments and remained absentonce, the order for recounting cannot be held bad in law.

Syed A. Jalil vs Mahbub Alam (Babul) 46 DLR(AD) 96.

Enemy Property –

Jointly heldby a real owner and the Custodian-Lands in joint possession, part of which isin joint possession of a real owner and part belongs to an enemyowner-Custodian of Enemy Property not entitled to dispossess the real ownerwithout having the land partitioned, thereby separate the real owner's portionfrom the other portion.

PromodeRanjan vs Government of Bangladesh 39 DLR 132.

Enemy Property-

(Continuanceof Emergency Provisions) Ordinance I of 1969-(Continuance of EmergencyProvisions) (Repeal) OrdinanceRepeal Act XLV of 1974-0rdinance 93 of 1976. AllEnemy Property vested in the Custodian is vested in Government.

PriyatoshTalukder vs Asstt. Custodian 39 DLR (AD) 178.

Enquiry and Discipline –

No order ofremoval and disqualification to be made without giving the member anopportunity of showing cause against such order.

Thepetitioner's right is protected in the proviso to section 26 providing that noorder of removal and disqualification shall be made without giving the memberan opportunity of showing cause against the order.

Md SalehAhmed Khan vs Addi Secretary Ministry of Local Government 41 DLR 210.

Enquiry and Discipline-

The secondshow cause notice not only did not give any reason why a higher punishment thanone recommended by the Enquiry Officer was proposed but also made amisrepresentation that the Enquiry Officer found the petitioner guilty of thecharge of misconduct as alleged.

Md Torah Alivs Bangladesh Textile Mills Corporation 41 DLR 138.

Enquiry and Discipline-

Appointingauthority disagreeing with the findings and recommendations of the EnquiryOfficer decided to dismiss the petitioner and in the second show cause noticemade not only a misrepresentation but an incorrect statement in respect of thefinding of the Enquiry Officer. The petitioner had a legal right to know whythe authority disagreed and proposed higher punishment.

Md Torah Alivs Bangladesh Textile Mills Corporation 41 DLR 138.

Enquiry and Discipline –

Second showcause notice is accused employee's last opportunity to place his side of thecase before the appointing authority-It is not an idle formality. Rules ofnatural justice required the appointing authority to furnish him with a copy ofthe Enquiry Report.

Md Torab Alivs Bangladesh Textile Mills Corporation 41 DLR 138.

Enquiry and Discipline-

The secondshow cause notice, therefore, is not an idle formality. In order to bemeaningful, it has to be accompanied or followed by the report of the EnquiryOfficer.

The rule ofnatural justice requires that along with the second show cause notice theaccused employee should be furnished with the same. Failure to do so will be afailure to comply with the principles of natural justice which will be readinto the Rules or Regulations.

Appointingauthority was not bound to accept the finding and recommendations of theEnquiry Officer but has to assign some reason for taking a different view (32DLR (AD) 46).

Md Torab Alivs Bangladesh Textile Mills Corporation 41 DLR 138.

Equitable Remedy-

Dispute overmatrimonial home-Principle of equitable remedy available to a trespasser may beextended to a spouse constructing a building on the land of the other spouse-Ina dispute between husband and wife over a matrimonial home, in the absence ofany other special circumstances the principle of equitable remedy available toa trespasser, to claim compensation or remove what he has built on another's landwith a bonafide belief that he has title to the land, may well be extended tothe spouse who expends money for a building on a land owned by the otherspouse.

AFMNaziruddin vs Mrs. Hameeda Banu 45 DLR (AD) 38.

Equity –

There maynot be any express P<?Wer in any statute to exercise magisterial power whilereinstating the respondent as Headmaster but the Deputy Commissioner in thefacts and circumstances of the case does not appear to have erred on the wrongside of equity. His intervention may have been outside of the framework of theStatute but since it was not exercised in perpetration of an illegality but inestablishing the legal right, no scope exists for interference.

Gazi ShamsulHoque vs Deputy Commissioner, Dhaka and another 50 DLR (AD) 69.

Equity –

In equity aCourt does not decree performance of an agreement in a case where parties areentitled to evoke or dissolve the agreement.

DainikJanakantha represented by its editor and Publishers Md Atiqullah Khan Masud andothers vs Dhaka Sangbadpatra Hawkers Bahumukhi Samabaya Samity Ltd 48 DLR 470.

Equity –

Incompletetransaction-When in pursuance of an agreement to transfer property, theintended transferee has taken possession, though the requisite legal documenthas not been executed, the position is the same as if the document had beenexecuted against all who want to threaten or disturb the possession of suchpossessor.

HafizurRahman vs Government of Bangladesh and others 47 DLR 583.

Equity-

Equity isnot in favour of the plaintiff as he knew all the transactions.

MuhammadMeah vs Pubali Bank 41 DLR (AD) 114.

Equity –

Avoidance ofimpending hardship - Petitioners are permitted to withdraw the considerationand statutory money compensation.

Abdul Sattarvs Osimuddin 42 DLR 24.

Estoppel-

Theplaintiff having challenged that order is now estopped praying for stay of themiscellaneous not from case.

Ahmed SilkMills Ltd vs Bangladesh Shilpa Bank 42 DLR 140.

Estoppel –

As long asthe High Court Division's judgment is not appealed against or its findings notset aside on any ground whatsoever, the third party petitioner is estopped fromfiling and maintaining any application for being added as a party to a suitcoceming the abandoned property in question and claiming independent title.

GolamMorshed vs Farhad Jahan 42 DLR 223.

Estoppel –

Principle ofpromissory - estoppel-Rules of 1976 and 1984-0nce the Corporation tookproceedings against its officers and employees under these Rules, it isestopped from denying the rights and remedies contained in those Rules at asubsequent state.

Abdul Hai vsTCB 40 DLR 109.

Estoppel against statute –

Whether acandidate who has been declared Chairman by Notification in the OfficialGazette has created an estoppel against statute by his subsequent conduct.

Hazrat Alivs Election Commission 41 DLR 486.

Estoppel –

Applicabilityof the principle - Facts and circumstances of the case warrant applicabilityof this principle-Corporation will be estopped from accepting the petitioner'sresignation.

MA Mannan vsBiman Bangladesh Airlines 41 DLR 318.

Evidence –

Defence casenot stated in the w/s but evidence was led to establish that-That cannot beallowed.

Hazera Begumvs Roushan Ara Begum 39 DLR (AD) 22.

Evidence –

PreviousJudgment- Probative value of- Whether reasons given by High Court Division fordeprecating the evidentiary value of the previous judgment are tenable.

HaziWaziullah vs Additional Deputy Commissioner, Noakhali 41 DLR (AD) 97.

Evidence—

When theamicable partition of the same property is the subject-matter in both thesuits, the previous judgment showing the amicable partition is certainly anevidence in the present suit.

HaziWaziullah vs Additional Deputy Commissioner, Noakhali 41 DLR (AD) 97.

Ex post facto Legislation –

The theoryof ex post facto legislation is not tenable in the instant case in view of thefact that the Indemnity Ordinance of 1975 appears to be void being ultra viresof the Constitution.

ShahriarRashid Khan vs. Bangladesh, represented by the Secretary, Ministry of Law andParliamentary Affairs and others 49 DLR 133.

Falsus in Uno, Falsus in Omnibus –

The Maxim"Falsus in uno, falsus in omnibus" is not a Rule of Law but is merelya Rule of Caution. The court is to examine the entire evidence and mustdistinguish the chaff from the grain and should not discard the entireprosecution case merely on the ground that a part of the story is found to befalse. It is the duty of the court to disengage the truth from falsehoodinstead of taking an easy course 't>f rejecting the evidence in its entiretysolely on the ground that the same is not acceptable in respect of some of theaccused.

NepoleonKhondker alias Lepu and another vs State 54 DLR 386.

Final hearing-

The words"final hearing" in the context of the Code of Civil Procedure embracethe entire period during which evidence is given and the arguments areconcluded.

ChowdhuryTanbir Ahmed vs Bangladesh 40 DLR 331.

Fine—

Whileimposing the sentence of fine the basic principles to be kept in view shall beas hereunder:

(a) theaccused has derived pecuniary gain from the crime; or

(b) the fineis specially needed to deter or correct the offender; or

( c) the victim requires pecuniary help fromthe offender.

NibirChandra Chowdhury and others vs State 53 DLR (AD) 113.

Franchise and Liberty –

"Franchise"and "Liberty" are used as synonymous terms; and their definition is aroyal privilege.

A MannanKhan vs Bangladesh 38 DLR (AD) 201.

Fraud –

Fraud, whenproved, question of limitation does not arise.

A MannanKhan vs Bangladesh 38 DLR (AD) 41.

Fraud-

A judgmentor order, however high or independent the tribunal delivering it may be andhowever exclusive its jurisdiction, is a nullity once it is proved that it wasobtained by fraud.

KhapanBittahin Co-operative Society Ltd vs Nagendra Mahisya Das and others 45 DLR502.

Fugitive from law-

A fugitivehas no right to seek any kind of redress as against his grievance, if any,against the judgment and order of a Court convicting him to imprisonment.

Monsur Ali(Md) and others vs State 55 DLR (AD) 131.

Function of the Supreme Court –

Court tointerpret law to make its decision to be binding on the subordinate Courts-ButSupreme Court cannot usurp the powers and functions of the legislature inmaking Jaw or those of the Administration or other authorities. If the Courtdeviates from the same, it will be judicial despotism of the worst type 1-TheCourt is not above law or the Constitution.

EhsanulHoque vs General Manager, Agrani Bank 42 DLR 60.

Fundamental Rights –

Propertybelonging to an individual citizen-Fundamental right cannot be taken awayexcept under strict compliance with Jaw-His right to defend.

Mohammad Alivs Burma Eastern Ltd 38 DLR (AD) 41.

Words and Phrases [Gift – Letter of Credit]

Words andPhrases

Gift –

Delivery ofpossession-The donee being a minor at the time when the property was gifted inhis favour, there was no need for formal delivery of possession by the donorbeing the guardian of the person and property of the donee. The High CourtDivision held illegally that the gift is incomplete as it was not accompaniedby delivery of possession.

Fazar Ali vsSikandar Ali 44 DLR (AD) 49.

Gift –

Acceptance-Wherethe property is not capable of physical possession the acceptance may be shownby mutating name in the official records, municipal papers and also with therevenue authority.

Bangladeshrepresented by the Secretary, Ministry of Housing and Public Works and another52 DLR (AD) 180.

Government-

The word"Government" denotes the person or body of persons administering theJaws and governing the State. "Government" is the body or personscharged with the duty of governing and exercising certain powers and performingof certain duties by public authorities officers together with certaincorporations exercising public function.

MustafizurRahman and 3 others vs. DG AntiCorruption and others 49 DLR 599.

Government –

Meaning of‘It’ means President. In the absence of any deligation of power the Governmentmeans the President and unless provided for in the Rules of Business, aGovernment order must be approved or ordered by the President; ‘Government'means either a system of Government or a body of persons administering Jaws orgoverning a state. It means the executive authority of the Government. It meansa real concrete existing body of human beings or an existing system.

Md SalehAhmed Khan vs Additional Secretary, Ministry of Local Government 41 DLR 210.

Government Circular –

The circularrequiring presence of an elected member of the Parliament in the meetings ofthe Thana Coordination Committee are meant to be acted upon by all concerned.The official functionaries of the Thana Parishad are bound to enforce them astheir terms and conditions are binding on the administration.

BarristerZiaur Rahman Khan vs Government of Bangladesh 52 DLR 164.

Government Civil Rules –

ManagingCommittee adopted the Government Civil Service Rules for its convenience-Suchadoption does not make the Rules as having statutory force.

GovernmentCivil Service Rules adopted by a Co-operative Bank for guidance of the BankSuch rules by their adoption by the Co-operative Bank do not extend theprotection given to a government servant.

Bangladeshvs Md Alauddin 38 DLR (AD) 81.

Ground –

The point onprinciple of estoppel having not been mooted either in the writ petition or inthe petition for leave to appeal the same could not be considered at the timeof hearing the appeal.

GrihayanLimited vs Government of Bangladesh, through the Secretary, Ministry of PublicWorks and Urban Development, Bangladesh Secretariat, Dhaka and others 47 DLR(AD) 12.

Hat and Bazar –

Governmentis the sole authority to establish hat and bazar and also to fix days of itssittings.

A MannanKhan vs Bangldesh 38 DLR (AD) 201.

Hat and Bazar –

Claim thatSalimabad hat established before 1850, sits on Tuesday and Friday in a week andthat after several shiftings it came back to its original site, not made out.

Held: It hasbeen claimed that Salimabad hat existed on its original site from time immemorial,from before 1850 AD. Due to the erosion of this place by the river Jamuna, itshifted to village Binanoo and after village Binanoo was washed away by thesame river, Salimabad hat is claimed to have shifted to its original site atmouza Salimabad when it reformed. Though there have been so many shiftings ofSalimabad hat, days of sitting of the hat remained the same, namely, Tuesdayand Friday in a week.

A MannanKhan vs Bangladesh 38 DLR (AD) 201.

Hat and Bazar –

Documentaryevidence does not establish plaintiff appellant's case that originallySalimabad hat sat on Tuesday and Friday each week at Salimabad mouza.

A MannanKhan vs Bangladesh 38 DLR (AD) 201.

Hat and Bazar –

Nothing toshow that its right to sit at Salimabad on Tuesday and Friday was by lawrecognised.

A MannanKhan vs Bangladesh 38 DLR (AD) 201.

Hat and Bazar –

Tebaria hatbeing older in origin has a preferential. claim to sit on Tuesday and Friday.

A MannanKhan vs Bangladesh 38 DLR (AD) 201.

Hindu Law –

Deity-Questionof representation -An admitted pujari and worshipper of the deity who hasoffered himself to act as next friend of the deity can by no means be precludedfrom representing the deity as such.

Pradip KumarChakraborty Jamila Khatun Bibi & ors 51 DLR (AD) 156.

Hindu Marriage –

Once thecelebration of a marriage in fact is established there shall be a presumptionof there being a marriage in law and observance of the essential ceremonies.

Utpal KantiDas vs Monju Rani Das 50 DLR (AD) 47.

Holding over & Statutory Tenant –

"Thewords "holding over" are not mentioned in the Premises Rent ControlOrdinance. A tenant "holding over" is a creature of Transfer ofProperty Act and his position, as such, depends upon the sweet will of thelandlord. Under the Ordinance, such tenants have not been described by any nameand in the absence of statutory name, they are designated by Court to be"statutory tenants".

Abdul Azizvs Abdul Majid 46 DLR (AD) 121.

Howla –

Howla orHawala is not materially different from Pattan. It is a tenure, an intermediateholding of a part of any estate under a Zamindar or Talukdar or whom a portionof rents collected from Ryots is paid.

Bangladeshvs Tobarak Ali Mia 43 DLR (AD) 131.

Ijara –

Nature of"Ijara" right-Ijara right is not a tenancy right and under an"Ijara" kubuliyat no tenancy is created. But the matter may bedifferent if the ijara right is renewed and the Ijara holder continues inpossession for an indefinite period Ijara created in 1926 by the original ownerfor a period of five years; but on expiration of this period the ljara holderis found to have continued when the land was exchanged in 1936, and even afterthe exchange, he is found to have continued in possession of the land for a fewyears morethe original Ijaradar was in possession of the land upto 1938-39AD-Ijara kabuliyat read with other papers show that though initially an ijaraor temporary lease was intended, it ripened into some sort of under-tenancybecause of continuous possession, and as the land was used for nonagriculturalpurpose e gas a residential hut, it was governed by the Transfer of PropertyAct at that time.

MdJashimuddin Kanchan vs Md Ali Ashraf 42 DLR (AD) 289.

Inchoate right –

whetherprotectable by injunction. Inchoate right means a right that has just begun buthas not yet developed into maturity.

MozherSowdagar vs M Zahirul Alam 40 DLR (AD) 62.

Inchoate right –

The questionof inchoate right was raised for the first time at the time of hearingrevisional application before High Court Division which did not find any primafacie case of inchoate right.

MozherSowdagar vs M Zahirul Alam 40 DLR (AD) 62.

Inchoate Right –

Cancellationof lease - During a long lapse of time the petitioner approached the authorityfor expediting execution of lease deed in his favour to run the cafeteria butthe respondent Government for some unknown reason deferred the execution for aninordinately long time on various pleas and at long last cancelled the leasewith a direction for fresh tender without any notice to or hearing of thepetitions. In these circumstances, the petitioner must be considered to have aninchoate right to the deed of lease and this right has been infringed. This isarbitrary and against the principle of natural justice.

ShahadatHossain vs Executive Engineer 44 DLR 420.

Injunction-

Order of-Anorder of injunction presupposes the possession of the person in whose favourthe order has been made and any determination of the question of possessionwithout reference to the order of the Civil Court would be clearly untenableand unacceptable so long the order of the Civil Court is in force.

Chand MiaMondal & others vs The State 42 DLR (AD) 3.

Instructions and circulars-

Instructionsand circulars issued under the Government authority-Have no force of law andmakes no legal right.

ShahidullahPatwary vs Begum Ajifa Khatun 37 DLR 333.

Insurer –

MarineInsurance Policy- Knowledge of the insurer about the nature of insured goods asper bill of Lading-Condition of insufficient package-Onus of proof lies uponthe insurer to prove that the assured has failed to perform the duty ofdisclosure of the condition of insufficient package of insured goods.

MercantileFire and General Insurance Co ltd vs Bata Shoe Company Pakistan Ltd 42 DLR 45.

Interest –

The generalprinciples as to grant of interest are that the court may allow interest for apre-suit period if the principle sum is fixed and payable at a definite timeand that such conditions were provided for in any agreement between the partiesor in any substantive law.

Sonali Bankvs Karnaphuli Works Ltd 46 DLR (AD) 55.

Interest –

Interest ondecretal amount plaintiff ought to be awarded a reasonable interest from thedate of institution of his suit upto the date of the decree and it is orderedto be allowed at the rate of 7.5% per annum.

Sonali Bankvs Gazi Abdur Rashid 44 DLR (AD) 255.

Interest rate –

Contract asto-Rate of interest for loan was 5% as per contract between the House BuildingFinance Corporation (defendant) and loanee (i. e, the plaintiff) This interestrate was enhanced to 7% in a security document (ie a mortgage deed) on thebasis of a government circular. Held: This unilateral enhancement by thedefendant wholly illegal.

BHBFC vsAbdul Mannan 38 DLR 338.

Interest rate –

Clause 3 ofthe mortgage deed is linked up with the bank rate and the borrower in hisexecuted mortgage-deed clearly stipulated that he would pay the rate ofinterest at the bank rate less 3% for the multistoried building. The issue issettled here.

BHBFC vs AMannan 41 DLR (AD) 143.

Interlocutory Orders –

Interlocutoryorders based on prima facie findings upon the materials placed before the Courtat the time of hearing of interlocutory matters are not binding upon the trialCourt which will decide the matter on merit on the basis of evidence adduced bythe contending parties.

UniversalPharmaceutical Ltd vs Social Marketing Company 50 DLR (AD) 92.

Interpretation of law –

Wheninterpretation of law is involved, the availability of an alternative remedywill not stand in the way. The principles of estoppel and waiver will not alsobe attracted here as there is no estoppel against statute.

GiasuddinAhmed Chowdhury alias Gias Kamal Chowdhury and others vs Dhaka University and others52 DLR 650.

Interpretation of the Holy Qur’an –

Therationale of the impugned judgment giving a literal construction and ordinarymeaning to the words and phrases of the Qur'an in the same way as oneinterprets an ordinary statute is not only legally wrong but morally despicapleverging on sacrilege.

HefzurRahman (Md) vs Shamsun Nahar Begum and another 51 DLR (AD) 172.

Interpretation of the Holy Qur’an –

A verse ofthe Qur’an has to be understood not in isolation, and less with a shallow knowledgeof language and certainly not with the interpretative techniques of man-madelaws but with the help of first the Prophet's (Allah's peace by upon him)teachings and practices and subsequently by the enunciations of Islamic juristsand scholars.

HefturRahman (Md) vs Shamsun Nahar Begum and another 51 DLR (AD) 172.

Issue –

Therespondent having not made the issue of authority competent to remove him as amatter for adjudication, he cannot obtain a relief on a last-minute productionof a letter of appointment without admitting the same into evidence.

SuperintendingEngineer and others vs Kazi Asaduzzaman and others 47 DLR (AD) 152.

Injunction –

Definitionof Lord Halsbury in his Laws of England has defined an injunction as a judicialprocess whereby a party is ordered to refrain from doing or to do a particularact or thing. This definition has not been changed as yet.

KhaledaRahman & another vs Integrated Services limited and ors 53 DLR 161.

Joint Ownership –

Payment ofrent by the plaintiff alone for a joint property will not go to change thecharacter of joint ownership and joint possession of brothers.

ShankarChandra Das vs Kalachand Das 46 DLR 419.

Judge made law –

Authoritativedecision of the superior courts, if uniformly followed, ripen into law, inwhich case legislative backing is not necessary. But where such decisions arenot uniform and they leave scope for divergent views, then suitable legislationbecomes necessary, all the more to dispel any doubt or resolve any confusion. thatis why the statutory laws were made. Administration of Justice Act, 1982 inEngland and the Interest Act, 1978 in India. No such law has yet been made inBangladesh and, as far as we know, in Pakistan also.

BADC vsKibria & Associates Ltd 46 DLR (AD) 97.

Judgment debtor –

Judgmentdebtor has no right or ownership or power of disposal. Here the vessel waspurchased by the money advanced by the Bank for the sole purpose of scrappingto be undertaken by the judgment-debtor under the control and supervision ofthe bank. The judgment-debtor has no right of ownership or power of disposal asan ordinary owner. If one is to go all the way with the reported decision thenthe possession of the attached goods is to be returned to the Bank. But in thiscase the possession is already with the Bank.

MohammadMeah vs Pubali Bank 41 DLR (AD) 14.

Judicial Notice –

The Courtcannot take judicial notice of controversial fact. The assertions made in thewrit petition were not controverted by the Government nor was the respondentput to strict proof as to his averments. Now, for the first time in appeal, theappellant wants that this Court should take judicial notice of theimpossibility of the plane journey on 3 December 1971 when the war had alreadybegun. The respondent's assertions were not denied by the Government aftergetting the full opportunity to do so. The Court cannot now take judicialnotice of a controversial fact whether Karachi airport was at all operationalon 3 December 1971 or not for a take-off.

Bangladeshvs Professor Golam Azam 46 DLR (AD) 192.

Judicial Power –

The words"Judicial Power' as used in section 71 of the Constitution mean the powerwhich every sovereign authority must of necessity have to decide controversiesbetween its subjects, or between itself and its subjects, whether the rightsrelate to life, liberty or property. The exercise of this power does not beginuntil some tribunal which has power to give a binding and authoritativedecision (whether subject to appeal or not) is called upon to take action.

Idris Ali vsState 38 DLR 270.

Jurisdiction –

So long asthe Court of Settlement acts within jurisdiction and does not commit any excessof jurisdiction High Court Division will be right in not interfering on theground of mere unsatisfactory disposal of a case.

Hosne AraBegum vs Chairman, Court of Settlement 46 DLR (AD) 9.

Jurisdiction –

Jurisdictionof a Court goes to the very root of a matter brought before it, and if theCourt got no jurisdiction everything shall fall through. The Court which got nojurisdiction over a matter shall not go into the merit of the matter.

Rupali BankVs Tafazal Hossain 44 DLR (AD) 260.

Jurisdiction –

ChiefMartial Law Authority - Having regard to the comprehensive nature of theproclamation of March 24, 1982 nothing could be beyond his authority. The CMLAdid not lack any authority to pass any order. Further, under the Constitution(Seventh Amendment) Act, 1986 all his orders shall be deemed to have beenvalidly made. The proposition in the case of Mrs. Jamila Muttalib vs Bangladeshreported in 91 1 BCR (1981) (HCD) 91 has no bearing in the present case. Thepetition for review is dismissed.

MujiburRahman vs Bangladesh 45 DLR (AD) 98.

Jurisdiction –

Means thepower of a Court or judge to entertain an action. A judgment pronounced by atribunal without jurisdiction is void. When jurisdiction of a tribunal ischallenged, the tribunal is competent to determine the question, though theresult of the enquiry may be that it has no jurisdiction to deal with thematter brought before it.

AnwarHossain (Md) and others vs State and others 55 DLR 643.

Jurisdiction of the Court –

Ouster ofsuch jurisdiction can only be claimed when an order or action is one not donein accordance with law and bonafide.

Held: It iswell settled that the jurisdiction of the Civil Court cannot be completelyousted even in the face of express ouster of jurisdiction in given statute. Ithas been repeatedly laid down by several judicial pronouncements that anyprovision made in a particular statute barring the jurisdiction of the CivilCourt to call in question any order passed or action taken under the statutegives protection to orders which are made with jurisdiction, made within theframework of the statute and made bonafide.

DeputySecretary, Ministry of Commerce vs Nizamuddin Haider 37 DLR 102.

Jurisdiction of the Court –

Exclusivejurisdiction conferred on a tribunal can not be immune from being challenged ifthe tribunal acts illegally, or acts malafide.

DeputySecretary, Ministry of Commerce vs Nizamuddin Haider 37 DLR 102.

Kabinnama –

Kabinnama orits registration is not essential in order to establish the validity ofmarriage.

Chan Mia(Md) vs Rupnahar 51 DLR 292.

Laches –

If therespondent has to explain his laches, which it has not, the appellant too has aduty to explain its own contributory laches, I am therefore unable to take aunilateral view of the Iaches of the respondent and ignore the unexplainedlaches of the Government itself:

Bangladeshvs Professor Golam Azam 46 DLR (AD) 192.

Law –

Misuse andperversion of law officials' and bureaucracies' excesses-severelycondemned-The property was never declared as an abandoned property.

Al-Haj MdHossain vs Bangladesh 39 DLR 265.

Law Court –

The LawCourt cannot oblige the statutory authority or body to follow a law at a timeit was not in existence.

EhsanulHoque vs General Manager, Agrani Bank 42 DLR 60.

Lawful Possession –

Lawfulpossession and claiming adverse possession-Distinction between.

NiropomaRitchel vs Mohammad Abdulllah Mia 41 DLR 469.

Lawyer's certificate-

When acertificate from an advocate of a superior court is placed before a subordinatecourt conveying a prohibitory order the latter should rather believe than doubtthe authenticity of such communication.

ChairmanKushtia Co-operative Industrial Union Ltd. vs Mujibar Rahman 44 DLR (AD) 219.

Legal Maxim - Noscitur A Sociis –

Thus rule ofnoscitur a sociis i.e. known by its associates is a test of construction of asingle word where there is a string of words on the principle that compiling ofwords together shows that they are to be understood in the same sense.

Ministry ofIndustries and another vs Shafi A Chowdhury and another 47 DLR 443.

Letter of Credit –

It is theblood of international commerce-The lifeline in international trade andcommerce- It operates to secure the payment to the seller for the price of thegoods sold. It also protects the corresponding interest of the buyer and thepaying bank.

KoreaExchange Bank, Seoul, Korea vs Gemini Garments Limited and others 56 DLR 392.

Legal obligation –

Moralobligation Where the use of property is permissive and not as of right no caseis made out for injunction far less a question of mandatory injunction-Theobligation referred to in this section means a legal obligation and not a moralobligation.

Aftabuddinvs Mahfuzus Sobhan 42 DLR (AD) 78.

Letters of Credit –

InBangladesh there is no statutory law governing the letters of credit whereasthere is statutory law relating to guarantees. The same principles of Englishlaw were also followed in the Sub-continent in connection with the casesrelating to irrevocable letters of credit.

SarhindGarments Ltd vs. Glory Truth Industries Ltd and another 49 DLR 260.

Letter of Credit –

A letter ofcredit has an autonomy of its own and it need be negotiated without referenceto the very contract out of which the credit arises.

SarhindGarments Ltd vs. Glory Truth Industries Ltd and another 49 DLR 260.

Letter of Credit –

A letter ofcredit has an autonomy of its own and it needed to be negotiated withoutreference to the very contract out of which the credit arises.

SM FazlulHaque vs Salahuddin Ahmed and another 54 DLR 612.

Letter of Credit –

It is an independentcontract- The letter of credit is an independent contract and not qualified bythe original contract of sale though it is based on it. It is also not effectedby any dispute between the buyer and the seller. The court will not allowinterference by outsiders with the letter of credit as it is bound to haveserious repercussions on the international trade of a country.

ZytaGarments Ltd vs Union Bank Ltd and another 55 DLR (AD) 56.

Letter of Credit –

Anirrevocable letter of credit constitutes a definite undertaking of the issuingbank, which it must honour and pay according to the terms and conditions of thecredit.

KoreaExchange Bank, Seoul, Korea vs Gemini Garments Limited and others 56 DLR 392.

Letter of Credit –

When theletter of credit expressly contains a term, the parties thereto are expectedand intended to act upon such term as they agreed and such term must be held tooverride a term ofUCP 400 which is incorporated only by reference.

KoreaExchange Bank, Seoul, Korea vs Gemini Garments Limited and others 56 DLR 392.

Letter of Credit –

Irretrievableinjustice - Once the beneficiary is found to be bankrupt, the bank of theseller would have no right to payment since its principal forfeited its rightto such payment. And such payment would result in irretrievable injustice.

KoreaExchange Bank, Seoul, Korea vs Gemini Garments Ltd 56 DLR 392.

Words and Phrases [Libel – Mutation Proceedings]

Words andPhrases

Libel –

There isnothing on record in support of statements by the defendants that the plaintiffwas trying to obstruct them in their legal pursuits and starting false casesagainst them. The allegations are too vague and lack in particulars. Theoffending statements were made, published and circulated with malice. Theplaintiff is a respectable man in the society and his wife and children arehighly educated and well-placed in society. By publication and circulation offalse and defamatory statements the plaintiff's reputation has been injured. Itis not understandable why the letter exhibit 3 was at all sent to the Governor,if not for malicious and improper motive of the defendants.

Abdus Sobhanvs Harekrishna Kundu 43 DLR 314.

Licence –

Itscancellation found arbitrary and illegal. So far as cancellation of the licenceis concerned, it appears that this has been done without any referencewhatsoever to the terms of agreement contained in clause 12 of the agreement.The clause provided for giving 30 days' notice before terminating the licence.

Mohammad Alivs Burma Eastern 38 DLR (AD) 41.

Licence –

Licencegranted in respect of a petrol pump on the basis of agreementRevocation oflicence in violation of agreement unauthorised. From all this appearing fromthe evidence in record, it becomes clear that the taking and handing over ofpossession of the petrol station was done without authorisation of law andwithout prior notice to the appellant firm and in complete disregard of theexpress term in agreement.

Mohammad Alivs Burm Eastern 38 DLR (AD) 41.

Licence cancellation of –

Terminationof agreement found malafide and arbitrary. Since the action of respondent No.Iin terminating the agreement and cancelling the licence has been found to benot only arbitrary, high-handed and unjust but malafide we find no reason, eventhough of limitation, to deny him the compensation decreed by the trial Court.In this connection appellant's Counsel mentioned that the appellant firm couldnot seek any legal relief against the respondents since the partners of thefirm were very much scared due to the prevailing lawlessness in the country.

Licensee-Licensee,definition of- Distinction between licensee and tenant- Under our law a personmay get possessory right in an immovable property by a licence granted by theowner of such property. Such a right is terminable at any time at the mere willof the person granting the licence. The person who is granted this right iscalled a "licensee". A licensee is not a tenant-A tenant from monthto month under the TP Act is different from a licensee. Taking them at par isfound to have led to the erroneous view that a monthly tenant is same as"tenant at will".

Pradhip Dasalias Shambhu and others vs Kazal Das Sarma & others 44 DLR (AD) 1.

Licensee and Lessee –

A Licenseehas no right, title or interest in the property save and except the right touse the same on behalf of the real owner, but a lessee has a right in theproperty and such right is heritable also. A licensee is only a user of theright of the real owner, whereas a lessee acquires a right in rem in theproperty itself.

Abul Hassnatvs Ershad Ali Beg 42 DLR 244.

Lien –

Theappellants who were originally preventive officers were duly promoted inaccordance with the rules on 26-6-83 as appraisers. They having been confirmedin such posts cannot retain any lien in their original posts as preventiveofficers.

Azizul HaqueSikder and others vs Collector of Customs, Chittagong and others 49 DLR (AD)172.

Local inspection –

"Localinspection" connotes only visual perception and not hearing of witnesses.

MoslemaKhatun vs Ishaque (Md) 42 DLR (AD) 72.

Loco parentes –

Aneducational institution, standing in the capacity of Loco parentes with thestudents, is not expected to award harsh punishments to its wards.

Masum Iqbal(Md) vs. Director of Students Welfare and Member Secretary of Board of Residenceand Discipline, Bangladesh Engineering University and others 49 DLR 104.

Malafide –

Malafide,effect of-There was no material to pass the resolution for suspending thepetitioner. Petitioner was kept under suspension for 9 months without framing ofany allegations and the order of suspension was not withdrawn in spite ofopinion of the Ministry of Establishment declaring the same void. Petitionerwas again charged with the self-same allegation. Allegation of Ismail Khan'srelationship with respondent No. 3 and his being influenced by Ismail Khan topenalize the petitioner for taking action against his subordinate Ismail Khanhas not been denied. Instead of rewarding the petitioner for taking actionagainst his subordinates for causing loss of revenue he was ousted fromservice. There was lack of bonafide in the entire proceeding ending withcompulsory retirement. The impugned order is vitiated by malafide and it beingfor ulterior purpose cannot stand.

Nurul HudaMiah vs Dhaka WASA 44 DLR 527.

Malafide –

Thepetitioner alleged that respondents had grudge against him and they cancelledthe proposed lease out of spite. The affidavit-in-opposition does not containany denial of this allegation specifically. The long delay in makingtransaction in question and sudden cancellation of the lease seem tosubstantiate the allegation of malafide.

ShahadatHossain vs Executive Engineer 44 DLR 420.

Malafide –

The findingthat the impugned decision dismissing the employee three years after thecharge-sheet smacked of malafide is a mere assumption. There being nothing toshow as to what benefits the employers would have collected in delaying thematter, they could at worst be called callous. Merely for the delay in takingthe impugned decision no bad motive can be ascribed.

Chairman,BCSIR vs Abdul Khaleque 43 DLR (AD) 209.

Malafide –

The weaknessof the argument that mere suspicion and inference cannot take place of proof isthat there is absence of fairness and transparency in the process of preparingthe evaluation report and that is, no doubt, malafide.

EkusheyTelevision Ltd and another vs Dr Chowdhury Mahmood Hasan and ors 55 DLR (AD)26.

Malafide –

The leasehaving been given to a corporation and not to an individual, question ofmalafide on the part of the government does not arise at all.

BangladeshSugar and Food Industries Corporation vs Md Kashem and others 55 DLR 350.

Malafide –

In order toestablish malafide on the part of public functionaries malafide must beconclusively established and cannot be readily inferred-Several notices underthe signature of the Secretary of the Dhaka University Discipline Board weredispatched to the petitioner directly to show cause against the proposedpenalty of expulsion from Dhaka University which shows absence of malice on thepart of the authority. Plea of malafide raised by the petitioner is notacceptable.

FarzanaHaque vs University of Dhaka 42 DLR 262.

Malafide –

When an actor order is tainted by malafide-A malafide act is by its nature an act withoutjurisdiction. No legislature when it grants power to take action or pass anorder contemplates a malafide exercise of power. A malafide order is a fraud onthe statute. It may be explained that a malafide order means one which ispassed not for the purpose contemplated by the enactment granting the power topass the order, but for some other collateral or ulterior purpose.

Nur Mohd vsMaulvi Mainuddin 39 DLR (AD) 1.

Malafide –

Malafide actis without Jurisdiction - Power conferred by or under any law must not beexercised malafide or for collateral purpose. The malafide act is an actwithout jurisdiction.

Nur Mohad vsMaulvi Mainuddin 39 DLR (AD) 1.

Malafide –

A malafideorder constitutes fraud and ultra vires. A malafide act is by its nature an actwithout jurisdiction. No legislature when it grants power to take action orpass on order contemplates a malafide exercise for power. A malafide order is afraud on the statute. It may be explained that a malafide order means one whichis passed not for the purpose contemplated by the enactment granting the powerto pass the order, but for some other collateral or ulterior purpose.

Mohammad Alivs Burma Eastern 38 DLR (AD) 41.

Malafide Acts –

Equivalentto acts done without Jurisdiction - So also when anything done is coramnon-judice.

F RahmanChowdhury vs Bangladesh 39 DLR 314.

Malice in law –

Malice inlaw means wrongful act done intentionally without just cause or excuse and mayalso mean conscious violation of law to the prejudice of another.

SerajulIslam vs DG Food 43 DLR 237.

Mandatory Rule –

Technicallyshould be ignored if there is substantial compliance with the law - Failure tocomply with a mandatory rule invalidates an action, whereas failure to complywith a directory rule does not invalidate an action. An absolute or mandatoryrule is the substance as against a directory rule which is a shadow; the formergoes to the root of a matter; the latter touches merely the fringe or branch ofthe matter.

Bangladeshvs Mis MF Limited 44 DLR (AD) 166.

Marginal Note –

It is to beremembered that marginal note/heading is not a substantive part of the sectionof a statute, rather it is merely an indicator as to the contents of thesection for the convenience of the reader.

AKM FaizuddinAhmed vs BJMC and others 56 DLR 202.

Marine Insurance –

A contractof marine insurance . is a contract of indemnity, i e, the amount recoverableis measured by the extent of the assured's pecuniary loss. It is never acontract of guarantee of a contract of "compensation for damages".

SadharanBima Corporation vs Bengal Liner Ltd and another 48 DLR (AD) 143.

Market –

What itmeans-when it can claim the franchise of being a market. Meaning of market: Atcommon law a market is a franchise conferring a right to hold a concourse ofbuyers and sellers to dispose of the commodities in respect of which thefranchise is given. The term is also applied to the like right when conferredby Act of Parliament. Though strictly applicable to the right itself the termsis often applied to the con-course of buyers and sellers, or to themarket-place, or to the time of holding the market. A gathering of buyers andsellers, though held at regular intervals in a fixed place, if it is not heldby virtue of a franchise or under statutory authority, is not in law a market,and cannot enjoy the privileges of franchise market or fair.

A MannanKhan vs Bangladesh 38 DLR (AD) 201.

Market –

Crown'spower in granting a new market at or near the place where another market isbeing held.

A MannanKhan vs Bangladesh 38 DLR (AD) 201.

Market franchise –

From a fewcases cited by the learned Attorney-General, it would appear that no such rightas market franchise exists in Bangladesh.

A MannanKhan vs Bangladesh 38 DLR (AD) 201.

Martial Law –

Martial Lawis an extra-constitutional dispensation- with its departure it no longer castsa shadow upon the ordinary laws of the land.

MonoranjanMukharjee vs Election Commission 41 DLR 484.

Master and servant –

Question ofrelationship between master and servant is one offactsBut if a decision as tosuch relationship has been arrived at on misreading of evidence or document, itbecomes a question of law.

Sarder AhmedAli vs GM Ali Baksh 37 DLR 7.

Master and servant –

Four indiciaof a contract of service between master and servant. Four indicia of a contractof service between the master and servant are--( a) the master's power ofselection of his servant;(b) the payment of wages or other remuneration: (c)the master's right to control the method of doing the work; and (d) themaster's right of suspension or dismissal Particular requirement of contract ofservice is the right of the master in some reasonable sense to "controlthe method of doing the work," and this factor of superintendence andcontrol has frequently been treated as critical and decisive of the legalquality of the relationship of master and servant.

Sarder AhmedAli vs GM Ali Baksh 37 DLR 7.

Master and servant –

When theservice rendered is of a public character the relationship of master andservant ceases.

Sarder AhmedAli vs GM Ali Baksh 37 DLR 7.

Master and servant –

The generalrule is that the master is answerable for the wrong of the servant or agent asis committed in the course of the service and for the master's benefit.

Sonali Bankvs MA Hakim 39 DLR 367.

Mataa (Consolatory Gift)-

Mataa hasbeen translated as consolatury gift or compensation or indemnity. It isbasically different from regular maintenance of the divorcee.

HefzurRahman (Md) vs Shamsun Nahar Begum and another 51 DLR (AD) 172.

Merit –

Grammaticalmeaning of the word. The plain grammatical meaning of the word 'merit' is"quality of deserving well, excellence, worth, good deeds as entitling tofuture rewards, thing that entitles to reward or gratitude."

MM Ismail vsBPDB 39 DLR 207.

Mohammadan Law –

Pre-emption-The pre-emptor cannot break up the bargain of sale by suing only for a portionof the property conveyed by the sale which gave rise to the pre-emptive claim.

Attar Miaand another vs Mahmuda Khataun Chowdhury 48 DLR (AD) 16.

Mohammadan Gift –

Gift is notliable to be revoked by the donor after delivery of possession if it is made toa donee who is related to the donor within the prohibited degree. And once possessionis delivered nothing short of a degree of a Court is sufficient for therevocation of a gift.

Samir Ali(Md) and others vs. Md Atiar Rahman Dafadar and others 49 DLR 131.

Motive –

Motivebehind the benami transaction is very important in deciding the question of abenami transaction.

Mahmudul Haqvs Mst Golap Bia 41 DLR 314.

Muhammadan Gift –

A Mahomedanmay dispose of all his properties by way of gift in favour of anybody, even toa stranger. But a gift in order to be valid and complete, there should,firstly, be a declaration of gift by the donor in favour of the donee,secondly, an acceptance of the said gift expressly or impliedly by the doneeand thirdly, delivery of possession of the subject mtter of the gift by thedonor to the donee.

BasihurRahman Biswas vs Md Hanif Ali Biswas & others 52 DLR 346.

Muhammadan Gift –

Theessential of a gift under Muhammadan law are a declaration of gift by thedonor, the acceptance of the gift by the donee, and the delivery of thepossession of the subject-matter of the gift.

Daru Miah vsSonaban and others 52 DLR 589.

Muslim Law –

Gift - Agift of usufruct for life is permissible in Muslim Law as it stands today inthe sub-continent.

RabjelMondal vs Didar Mondal and others 47 DLR (AD) 41.

Mutation Proceedings –

Mutationproceedings are done under the State Acquisition and Tenancy Act and the Rulesframed thereunder.

Idris Ali vsState 38 DLR 270.

Words and Phrases [Natural Justice]

Words andPhrases

Natural Justice –

NaturalJustice in a case of disciplinary proceeding-In a case of disciplinaryproceeding against an employee, in the absence of statutory rules, the employeemust be given prior notice of the proceeding so that he gets an adequateopportunity to defend himself.

Jamuna OilCompany Ltd. vs Sic. Dey & another 44 DLR (AD) 104.

Natural Justice –

Thecontention that the respondent was given a hearing during the on-the spotenquiry by the Deputy Land Reforms Commissioner will not be a sufficientcompliance of the principle of natural justice, because the impugned order ofderequisition was passed not by the Deputy Land Commissioner but by theMinistry.

Bangladeshvs Commercial Trust of Bangladesh Ltd. 46 DLR (AD) 89.

Natural Justice –

The maxim'Audi Alteram Partem', no man shall be condemned unheard, applies to judicialas well as administrative bodies, specially where the proceedings taken mayaffect the person or property or other rights of the parties concerned in thedispute.

Mahinuddinvs Dhaka University 45 DLR 292.

Natural Justice –

Naturaljustice is nothing but a procedural justice; being procedural it cannot be saidit is not vested. In none of those situations where Natural Justice clause isinvoked there existed any legal right for such an asking but the matterinvolves what the Court often calls a 'legitimate expectation of proceduraljustice. When that is not specifically ousted by the law itself, the Courtwould read into the law such a clause.

ProfessorGolam Azam vs Bangladesh 45 DLR 423.

Natural Justice –

In a casewhere there are no rules and regulations for conducting enquiry, the principleof natural justice is to be followed.

EhsanulHoque vs General Manager, Agrani Bank 42 DLR 60.

Natural Justice –

Where anemployee is removed under statutory rules which exclude holding of inquiry incertain circumstances, the principle of natural justice is not applicable.

Wahiduzzamanvs Chairman, BIWTA & others 45 DLR 679.

Natural Justice –

Question ofsecond show cause notice-The principle of natural justice requires only anopportunity to be given to defend the concerned employee. The principle doesnot automatically give to the affected person a right to second show causenotice unless the provision for it is in the service rules or in the ParentAct.

Abdul Jalilvs Bangladesh Steel & Engineering 43 DLR 474.

Natural Justice –

Direction byBangladesh Bank upon a company debarring it from enjoying its cash creditfacility with a bank, not for violation of any of the terms of its agreementwith the bank but for its failure to pay the alleged claims of respondentBangladesh Shilpa Bank, is a violation of the principle ofnaturaljustice as thesame was given without any hearing to the company.

Delta JuteMills Ltd. vs Sonali Bank 43 DLR 483.

Natural Justice –

To a personlike the petitioner who constructed a building without sanction opportunity hasbeen given to obtain sanction on payment often times of the prescribed fee andfine imposed. Had the petitioner availed such opportunity to protect hisconstruction by submitting an application for sanction it should be said thathe was prejudiced for not allowing him an opportunity to be heard on questionof saving his construction from demolition. In the absence of pendency of anyapplication for sanction, it cannot be said that there was failure of the principleof natural justice in his case.

HabibullahChowhdury vs RAJUK 43 DLR 187.

Natural Justice –

Thepetitioner was not given any hearing or even a notice for cancellation of hisproposed lease after a long lapse of time which militates against the principlesof natural justice.

ShahadatHossain vs Executive Engineer 44 DLR 420.

Natural Justice –

Forcedretirement of Mauza Headman-Whether violative of Natural Justice - There is noprovision under the Rules for forced retirement, although action against theHeadman could be taken on grounds of incompetence or misconduct. The forcedretirement of Headman Shewe Hla Prue TK is a punishment and, as such, it wasnecessary for the respondents to give him an opportunity of being heard beforepassing the impugned orders.

Shewe HlaPrue TK vs Commissioner, Chittagong 44 DLR 539.

Natural Justice –

Where adoubt arises in respect of a person's status, conduct or intention that personmust be the first person to be heard and given the opportunity to dispel thedoubt.

Bangladeshvs Professor Golam Azam and others 46 DLR (AD) 192.

Natural Justice –

The precisepurpose of invoking the principle of natural justice is to supplement the stateand not to supplant it. So far as the violation of natural justice is concerneda decision has been cited by the learned Advocate for the petitioners, namelythe Bangladesh Steamer Agents Association vs Bangladesh and others 33 DLR (AD)177. Their Lordships have observed that it is inconcelivable that when acitizen is deprived of a right vested in the person, he can be deprived of thatright by a capricious or arbitrary executive fiat without being challenged asbeing violative of the principles of natural justice. All that this decisionappears to have decided is that before a right of individual is terminated hemust be heard.

Nurul Islamvs Bangladesh 46 DLR 46.

Natural Justice –

If thetermination is found to be within the four comers of the law the Court cannotnullify it on the ground that it is harsh. There is no requirement in the Rulesthat termination would be void when no reason for it was assigned. Theprinciple of natural justice is also not applicable in the case as thisprinciple has been excluded in the Rule itself. The appointing authority hasgot power to .reinstate a terminated employee.

BangladeshParjatan Corporation vs Shahid Hossain Bhuiyan and others 43 DLR (AD) 154.

Natural Justice –

A postalclerk asked to act as an Inspector on purely temporary basis was reverted tohis substantive post after about five years' service cannot be said to haveacquired a vested right in the post. In the facts of the case the respondentwas not entitled to any show cause notice nor was there any violation of theprinciple of natural justice.

Bangladeshvs Md Fazlul Huq 43 DLR (AD) 144.

Natural Justice –

No righthaving been created in favour of the petitioner by the earlier order, there wasno question of giving any opportunity to it to be heard. Privilege offered bythe Government having not been availed of there was no question of givingnotice before passing the impugned order.

JanapriyaRice Mills Ltd and 2 others vs. Bangladesh represented by the Secretary,Ministary of Food, Bangladesh Secretariat, Dhaka & others 49 DLR 277.

Natural Justice –

There was noallegation of malafide against the invigilator and the Chief Invigilator.Merely because they were examined by the Board in the absence of the petitionerit cannot be held that principle of natural justice was violated.

Masum Iqbal(Md) vs Director of Students Welfare and Member-Secretary of Board of Residenceand Discipline, Bangladesh Engineering University and others 49 DLR 104.

Judicial Notice –

When judgescan take judicial notice of certain facts in deciding private law disputes thenthere can be no ground for the objection in judges taking notice of facts andcircumstances prevailing in the society in which they live.

NasreenFatema and 20 others vs. Bangladesh and others 49 DLR 542.

Natural Justice –

Since nostatutory provision of law has been violated in removing the presentpetitioner, the question of violation of the principle of natural justice doesnot arise at all.

KaziMokhlesur Rahman vs. Secretary, Ministry of Law, Justice and ParliamentaryAffairs, Government of the People's Republic of Bangladesh and others 49 DLR126.

Natural Justice –

Theprinciple that no man should be condemend unheard is applicable to judicial aswell as adminstrative bodies.

Abul HossainAkand (Md) and others vs. Abul Kalam Azad and another 49 DLR 257.

Natural Justice –

Theinvocation of principle of natural justice. is a matter which is guided under astatutory provision and the same provision having been infringed by thepetitioner is not acceptable.

AnwarHossain vs Secretary, Ministary of Finance, (Internal Resources Division) andothers 49 DLR 321.

Natural Justice –

Theprinciple of natural justice ought to have been complied with. Becauseprinciple of natural justice is also applicable in administrative matters asnatural justice demands that before a person is proceeded against he should …the allegations against him and, as such, he should be given an opportunity ofexplaining his position in the matter.

Rafiqul Alamvs. Secretary, Ministry of Works, Government of the People's Republic ofBangladesh and others 49 DLR 456.

Natural Justice –

Faircompliance of the rule of Natural Justice - The first requirement of the ruleis that the person to be proceeded against must be made aware of theallegations against him. The right to have notice of the charges.

Principal,Chittagong Medical College and others vs Shahrayar Murshed 48 DLR (AD) 33.

Natural Justice –

When thepetitioner's dismissal from service is preceded by due show cause notice andopportunity to defend himself, there arises no question of violation of naturaljustice.

MomtazuddinKhan (Md) vs Managing Director, Agrani Bank, and others 48 DLR 550.

Natural Justice –

In order toensure the elementary and essential principles of fairness "as a matter ofnecessary implication the person sought to be affected must at least be madeaware of the nature of the allegations agaisnt him, he should be given a fairopporutnity to make any relevant statement putting foward his own case"and the authority is to give an opportunity to the person sought to be affectedto correct or contradict any relevant statement prejudicial to him. In order toact justly and to reach just ends by just means the Coaurts insist that theperson or authority should have adopted the "elementary and essential pinciples"unless the same had been expressly excluded by the enactment empowering him toso act.

ShahryarMurshed vs Pincipal, Chittagong Medical College and othes 48 DLR 482.

Natural Justice –

If therespondents had no licence as alleged but even then they were carrying on withtheir business they were entitled to get a notice before sealing of theirMills.

Chairman,Ziila Chora Chalan Daman Samanaya Committee, Mymensingh and another vs MdKabirul Islam Beg and 5 others 49 DLR (AD) 131.

Natural Justice –

It will notbe in consonance with the principle of Natural Justice to deny the directlyrecruited officers a hearing when a question of seniority over them is beingraised after 15 years of their recruitment.

Hafizuddin(Md) and three others vs Bangladesh Bank, represented by Governor 49 DLR (AD)147.

Natural Justice –

It is wellsettled that a show cause notice is not a technical requirement or an idleceremony. The notice must not be vague or in bare language merely repeating thelanguage of the statute.

Governemntof Bangladesh and others vs Md Tajul Islam 49 DLR (AD) 177.

Natural Justice –

In notgiving specific facts with particulars in the show cause notice, the rule offairness which is a part of the principle of Natural Justice has been offended.

Governmentof Bangladesh and others vs Md Tajul Islam 49 DLR (AD) 177.

Natural Justice –

Cancellationof licence - The cancellation of a licence is a serious matter adverselytouching a person's pecuniary interest, More than that; if affects afundamental right of a citizen to conduct any lawful trade or business subjectto certain restrictions imposed by law. The Court would always insist that anauthority exercising such a drastic power of cancellation acts strictlyaccording to law and always with fairness.

Governmentof Bangladesh and others vs Md Tajul Islam 49 DLR (AD) 177.

Natural Justice –

Fourstudents were killed in the campus and there was continuous disturbance indifferent halls amogst the students of different groups having differentpolitical bias. In such a situation the Chancellor had to take immediate actionand, as such, the question of issuing show cause notice did not arise at all.

Professor DrMd Yusuf Ali vs Chancellor of Rajshahi University, Rajshahi 50 DLR 1.

Natural Justice –

Thepetitioner seems to have been condemned unheard. This condemnation or stickingof stigma on her person is ex-facie violative of the principle of NaturalJustice. Whatever actions have been taken by the respondents against thepetitioner by way of blacklisting and debarring her from carrying on businessin Bangladesh is without lawful authority and of no legal effect.

DorisWaldman vs Bangladesh and others 50 DLR 151.

Natural Justice –

Approval ofthe verbal dismissal culminating in final dismissal without any show causenotice is not permissible in law as dismissal is a major penalty.

Quazi AbdulHaleem vs Government of the People's Republic of Bangladesh, and another 50 DLR472.

Natural Justice –

The impugnedorder of removal having not been made by following the law and giving theplaintiff any opportunity to show cause subsequent approval of the same by theGoverning Body cannot make it lawful or valid.

SyedJahangir Hossain vs Md Moyenuddin and others 52 DLR (AD) 140.

Natural Justice –

As law doesnot require that matter of non-approval or non-acceptance of a bid made in anauction is to be made with notice to the bidder petitioners contention ofviolation of principle of Natural Justice in the making of the order by therespondent is not well founded.

Bashiruddin(Md) vs Bangladesh, and others 52 DLR 201.

Natural Justice –

Even whereprovision for show cause notice and opportunity of personal hearing are notavailable, the principle of natural justice shall be applied unless it isspecifically barred.

Chairman,Board of Intermediate and Secondary Education, Jessore and ors vs Md AmirHossain and another 56 DLR (AD) 24.

Words and Phrases [Negotiating Bank – Promissory Estoppel]

Words andPhrases

Negotiating Bank –

The wordnegotiation envisages purchase of draft and documents by the concerned bank.Even a promise to pay at a later date would not do. There must be acorresponding payment to the beneficiary on receipt of the draft and thedocuments by the concerned bank to make it a 'negotiating bank'.

NationalBank Ltd and others vs Habib Bank Ltd and others 56 DLR 15.

Necessary party-

"properparty" and "proforma party"- Executing Court is not to go behindthe decree and write out a new decree in the name of interpretation-Theexpression 'program' does not exist in the Code of Civil Procedure-Merelybecause a defendant was described as a program, he would not acquire anyNecessary party -The petitioner is a necessary party in whose presence the suitshould be decided, for proper and effective adjudication.

Dr ShakawatHossain vs Bangladesh 40 DLR 340.

Nobody can be allowed to take advantage of own fraud-

DefendantNo. 2 is the Managing Director of the defendant company and also a Director ofthe .plaintiff-Bank any statement by him in a court of . Jaw about liability ofthe defendant company for a certain sum of money to the plaintiff Bankundoubtedly burdens the defendant for the said sum of money.

If thecontention is defendant No. 2 in so saying committed a fraud on the defendant,the query is why no action was taken by the defendant against its own ManagingDirector for fraud committed upon it, thus making itself an associate withfraud. No one can be allowed to take advantage of own fraud.

Planters(Bangladesh) Ltd vs Mahaluxmi Bank Ltd 37 DLR (AD) 129.

Non-Agricultural Tenant –

The definitionwill apply prospectively so as to include the successor-in-interest of tenants.

MahaprabhuRam vs Gopal Ram 42 DLR (AD) 154.

Non-speaking order –

The order ofthe Munsif being a non-speaking one is not maintainable.

Gani Mia vsUNO Biswanath 42 DLR 72.

Notice –

Its purpose- The purpose of a statutory notice is to give an opportunity to show cause andto remedy or amend the wrong done before the proposed action to be taken. It isa requirement of a fair play. Such notice must be specific, clear and preciseon the breach or violation etc committed. Otherwise, the very purpose of thenotice would be defeated.

A RaufChowdhury and another vs Bangladesh and others 52 DLR 461.

Observations –

The trialCourt is required not to take into account any observation or comment made inan intertocutory matter by the higher Court, except observing any directionthat may be contained therein.

DelwarHossain Khan (Md) vs Dhaka Club Limited and another 48 DLR (AD) 198.

Observations –

Whatever theHigh Court Division has observed while disposing of the injunction matter willhave no binding effect on the trial Court while disposing of the suit on merit.

Abdul MannanMiah vs Solaiman Miah 53 DLR (AD) 104.

Own Wrong –

Nobody isentitled to take benefit of his own wrong. To claim that since no document hasbeen executed the claimant has no right is nothing but taking advantage ofone's own wrong.

Secretary,Ministry of Industries vs Saleh Ahmed 46 DLR (AD) 148.

Onus of proof –

Onus lies onhim who asserts that the transaction is a benami one.

Mahmudul Huqvs Mst Golap Mia 41 DLR 314.

Onus of proof –

Partitionsuit-Plaintiff must prove his case of being a successor interest. The onus wason the plaintiff to prove that his father Nagar was the son of Gour Majhi, butno paper was produced by him to substantiate his claim that his father Nagarwas the son of Gour Majhi.

GopalChandra vs Lasman Dasi 39 DLR (AD) 73.

Onus of proof –

Plaintiffraised no claim in law (in a suit for partition) nor he had any possessiontherein-His partition suit must fail.

GopalChandra vs Lasman Dasi 39 DLR (AD) 73.

Onus of proof –

When acourt's decree exists, (whether contested or ex-parte) to have the said decreeadjudged as obtained by fraud heavy onus lies on the party who seeks a decree.

SubitriBarai vs Asstt. Custodian 39 DLR 172.

Onus of proof –

Requirementof law to uphold a document against an illiterate ignorant pardanashin villagewoman aged 80 years is to prove that she had received independent disinterestedadvice before execution and registration of the sale-deed and that its contentswere read over to her-The sale-deed in question is not a valid legal documentbinding against the executant in the facts and circumstances of the case.

Gaher Ali Mollahvs Hajera Khatun 40 DLR 297.

Partition Suit –

In a suitfor partition if the decree is not drawn up it should be construed that thesuit is still pending.

In a suitfor partition when the defendants claim a saham he may take step for drawing upof a decree even when the plaintiff failed to take any step.

Haji NoorMohammad Mollah vs Haji Nurun Nabi Mollah 47 DLR 152.

Partition Suit –

PartitionSuit, requirements of-It is well settled that partition is the division madebetween several persons of joint land which belong to them as co-proprietors,so that each becomes sole owner of the part which is allotted to him. But inthis case I find no community of interest among the plaintiff and thecontesting defendants in the disputed land for a suit for partition.Unfortunately, the Courts below did not notice this vital aspect of the caseand thus were wrong to decree the suit. The judgment and decrees passed by theCourts below are set aside.

Kusum MaiBewa and others vs Soleman Miah and others 47 DLR 403.

Partition Suit –

Hotchpotch-Ruleof equity-In a case where all the joint. properties were not brought intohotchpotch of the partition suit, the omission will not defeat the suit-a ruleof equity as opposed to a rule of law shall be applied on the convenience ofthe parties concerned without causing prejudice to anyone.

RabijaKhatun and others vs Badshah Meah and others 47 DLR 511.

Partition Suit –

In a suitfor partition the court will no doubt consider the ·title to the plaintiffs tothe suit land in some details more than in a suit for permanent injunction, butit cannot in either case convert itself into a court for determination of therespective titles of the parties if a serious dispute emerges from thepleadings as to the title of the plaintiffs to the partible property and if itis not possible to effect partition without formally detennining theplaintiffs' title to the property claimed in the patition suit.

Rezaul Karimand others vs Shamsuzzoha and others 49 DLR (AD) 68.

Partition Suit –

Order I rule9-No suit can fail by reason merely of non-joinder of parties.

Safaruddinand others vs Fazlul Huq and others 49 DLR (AD) 151.

Partition Suit –

The rulethat all the joint properties should be included in a suit for partition is notan inflexble one. Sofaruddin and others vs Fazlul Huq and others 49 DLR (AD)151.

Partition Suit –

Hotchpotch-Ifproperties are left out in a partition suit it brooks further litigation. It istrue that this rule is relaxable. But there are specific situations calling forrelaxation.

Nurul Afsarvs Rajiqul Ahmed & ors 51 DLR (AD) 155.

Partition Suit –

Hotchpot -Where parties to the partition suit have no common interest in a particularproperty, the same need not be included in the schedule of the plaint.

Adbul KaderKhalifa vs Saju Bibi and others 52 DLR (AD) 34.

Partition Suit –

PartitionTitle in a suit for partition all the incidental questions of title, howevercomplicated it may be, can be decided and finally disposed of.

CinmoyChowdhury and another vs Mridul Chowdhury and others 55 DLR (AD) 115.

Possessionof their specific land under distinct and separate holdings for more than 12years, the plaintiffs no more need partition of their land.

NFMUniverseum Estate Ltd vs ANM Obaidul Islam and others 56 DLR 563.

Partition suit-

Allco-sharers must be impleaded as parties. In the partition suit five of theappellants, (plaintiff Nos. 1-5) were not impleaded. In a partition suit theestablished principle of law is that all co-shearers shall be impleaded andthat failure to implead any co-sharer shall render the suit liable fordismissal on the ground of maintainability.

Mobinnessavs Khalilur Rahman 37 DLR (AD) 216.

Partition Suit –

Differentmatters involved in partition suit resolved. All contending issues need beresolved in the suit.

Sahimon Bewavs Sajiruddin 38 DLR 265.

Partnership –

Right ofeach partner does not give a partner any exclusive right in any part thereofuntil dissolution and accounts taken.

Musa BinShamsher vs Ansarul Huq 39 DLR 24.

It the rightof locomotion abroad is a negation. A passport as such is more than a propertyto a citizen because without passport one cannot move an inch whenever he isoutside the country. In the absence of the passport a person in an alienterritory is a crippled person.

Syed MokbulHossain vs Bangladesh 44 DLR 39.

Patni Taluk –

It is a'taluk' created by the Zamindar to be held at a rent fixed in perpetuity by thelessee and his heirs forever, the patnidar being a tenant. A Patni is not amere lease-hold property- The patnidar may let out the lands in any mannerconducive to his interest.

Bangladeshvs Tabarak Ali Mia 43 DLR (AD) 130.

Possession –

Recovery ofpossession - Prayer for recovery when not necessary- When the Court declaredthat the property in question is not enemy/vested property, the Governmentought to have released the same. In such a case prayer for recovery ofpossession is not necessary. For failure to deliver possession, the plaintiffis entitled to rent till possession of the property is delivered to him.

Hosne AraBegum vs Government of the People's Republic of Bangladesh 45 DLR 554.

Passing-off-

A deceptivepractice- What is meant by "passing-off'. The foundation of a passing-offaction is that nobody is entitled to represent his goods as the goods ofsomebody else. Foundation of a passing-off action is always deception orposssibility of deception..

ShafquatHaidar vs Al-Amin 39 DLR (AD) 103.

Passing-off –

Its aim isto mislead people into believing that they are acquiring plaintiffs goods-Thesetwo points the plaintiff must establish in his suit.

ShafquatHaidar vs Al-Amin 39 DLR (AD) 103.

Passport –

A passportis considered as prima facie evidence of citizenship or nationality of its holder.

A passportis not regarded as conclusive evidence of the citizenship or the nationality ofits holder. This is because practice of issuing passport to non-citizens iswidely prevalent amongst nations. Article 15 of the Bangladesh Passport Order,1973 (President's Order 9 of 1973) provides that the government may issue apassport or travel document to a person who is not a citizen of Bangladesh.

Bangladeshvs Professor Golam Azam 46 DLR (AD) 192.

Pending Action –

These wordshave been understood to mean pending suit. The Court misinterpreted andmisunderstood that the meaning of 'action' is not confined to a suit or otherlegal proceeding in court or that the word will mean and include any action tobe taken by the insurer after the claim is lodged by the insured.

SadharanBima Corporation vs Sanjib Kumar Das and another 47 DLR (AD) 97.

Pending Action –

The word'pending action' means initiating a legal proceeding in Court within thementioned period and its failure by the insured, forfeits his right to sueunder the Policy.

BangladeshGeneral Insurance Co Ltd vs Chalna Marine Products Co Ltd 51 DLR 357.

Person aggrieved –

Question of locus standi to file writpetition-Whether Bangla- desh Sangbadpatra Parishad, a registered Associationof owners of the newspapers and newspaper organisations in Bangladesh iscompetent to challenge the validity of the constitution of Wage Board and itsauthority of fixing minimum wages for newspaper employees. Held-In the factsand circumstances of the case, the petitioner Bangladesh Sangbad- patraParishad is not a "person aggrieved" to question the award of WageBoard or the connected law, as it has nothing to lose or win by the impugnedaward. It is the owners of newspapers and the employees who are affected by theaward and not Bangladesh Sangbadpatra Parishad. This Parishad may represent theemployers anywhere but it has no locus standi to invoke the jurisdiction ofthis Court under Article I 02 of the Constitution.

BangladeshSangbad Patra Parishad vs Bangladesh 43 DLR 424.

Person aggrieved –

Thepetitioner may represent the employers in the Wage Board but its locus standito act on behalf of its members in a Writ Petition is just not there.

BangladeshSanghadpatra Parishad (BSPJ vs Bangladesh 43 DLR (ADJ 126.

Persona designate –

What theexpression means - When one is designated not by name but by officialdesignation.

Ruhul Aminvs District Judge 38 DLR (ADJ 172.

Pleadings –

Because ofits failure to consider the pleadings of the parties in juxtaposition theAppellate Tribunal misdirected itself to ask a wrong question and ultimately itgave a wrong decision.

AK MohammadIdris vs Bangladesh Krishi Bank and others 48 DLR (ADJ 48.

Possession –

Is neverconsidered adverse if it is referred to lawful title-Where a claim has beennever made in the defence no amount of evidence can be looked into upon a pleawhich was never put forward before.

Hazera Begumvs Roushan Ara Begum 39 DLR (ADJ 22.

Power –

The amendingpower is a legislative process Devoid of the Constituent powers to amend theprovisions of the Constitution in derogation of the basic conception so as todestroy the Constitution.

(Sic) AnwarHussain Chowdhury vs Bangladesh 41 DLR (ADJ 165.

Power –

Constituentpower-Power to make a Constitution-Power belongs to people-It is the originalpower-whether 'Constituent power' can be vested in the Parliament.

AnwarHussain Chowdhury vs Bangladesh 41 DLR (ADJ 165.

Power-of-attorney –

Cancellation of- Principal can accept the writtenstatement filed on the basis of the power of attorney executed by him, withoutcancellation power of attorney.

ManindraMohan Kar vs Ranadhir Datta & others 38 DLR 240.

Preamble –

Although thePreamble to the Constitution cannot be implemented, it has been held to be apart of the Constitution.

Aftab Uddin(Md) vs Bangladesh, represented by Secretary, Ministry of Establishment,Governemnt of the People's Republic of Bangladesh and other 48 DLR.

Precedent –

“Applicabilityof precedent - Law enunciated by the superior Courts are to be applied insubsequent cases if there are some similarities between them.

ProfessorGolam Azam vs Bangladesh 45 DL R 426.

Precedent –

It is basicto the rule of precedent that if a later judgment of an apex Court, particularlywhen given without considering or noticing its earlier decisions on the sameissue or point, and comes in conflict or at variance with its earlier ones,such judgment however latest in time, loses its binding element for being ajudgment made per incurium.

Monju Miaand others vs Shiraj Mia 56 DLR 264.

Previous –

means priorto the enactment of the repealing Act of 1974(XLV of 1974).

The word'previous' means and refers to the point of time, in the present case, to thesaid date which is, of course, prior to the enactment of the repealing Act of1974. The legislative intent, as it appears from this clause, would show thatthe repeal was not intended to remove the ineneeutability of the decree in thepresent case which attached to it at the time it was obtained due to theoperation of the Ordinance.

PriyatoshTalukdar vs Assistant Custodian 39 DLR (AD) 178.

Previous operations –

Previousoperations of a repealed law mean and include all actions past and closed.There cannot be two conflicting laws, one prohibiting sale and the otherpermitting sale.

PriyatoshTalukdar vs Assistant Custodian 39 DLR (AD) 178.

Principal and agent –

Act done bythe agent for the principal~Master and servant)-General rule that master isanswerable for every wrong of servant or agent committed in the course of theservice and for the master's benefit.

Sonali Bankvs MA Hakim 39 DLR 197.

Principal and agent –

Principal isnot liable for the torts or negligence of his agent in any matter beyond thescope of the agency.

Sonali Bankvs MA Hakim 39 DLR 197.

Principal and agent –

Theprincipal being a known one, and with whom the plaintiffs have dealt withregarding the cargo, the agent cannot be personally liable.

BCIC vs MVKavo Alkyon 38 DLR 209.

Principle of Audi Alteram Partem –

There beingno observance of the principle of audi alteram partem in this case, therudimentary principle of natural justice that a person should not be condemnedunheard has been disregarded.

FarzanaHaque vs University of Dhaka 42 DLR 262.

Professional Etiquette –

In thegreater interest of justice always a safe distance is to be maintained betweenthe judges and members of the legal profession retaining good relations andrespect for each other.

State vs MAWahab, Advocate 51 DLR 257.

Professional misconduct –

Filing ofhazira of witnesses and then filing petition for time on the ground ofengagement of lawyer in another Court and non-appearance before the court isprofessional misconduct.

Nurul IslamPalan & others vs Harez Ali Palan & others 45 DLR 558.

Promissory Estoppel –

Had therebeen any assurance as claimed that the Government would fulfil the demand ofthe hunger strikers even then the plea of promissory estoppel could not beinvoked because it is a settled principle that where a statute imposes a dutyof a positive kind, not avoidable by the performance of any formality, for thedoing of the very act which the party suing seeks to do, it is not open to theopposite party to set up an estoppel to prevent it. A promise cannot supersedea statutory duty of a public authority.

ABM QuabilAhmed vs Ministry of Health 44 DLR 385.

Promissory Estoppel –

Applicabilityof the principle against Government-Whether Government would be bound by theacts of its officers acting beyond the scope of their authority-On facts it hasconclusively been proved that the land underneath Mis Drums Metals Ltd. belongsto the Ministry of Defence. The agreement executed by the Ministry of Industryfor sale of the land to 'the petitioner cannot bind the Government on thedoctrine of promissory estoppel, more so when the petitioner had the knowledgethat the land belonged to the Ministry of Defence.

NationalEngineers Ltd, a Private Limited Company vs Director, Military Lands andCantonment Directorate and others 44 DLR 144.

Promissory Estoppel –

Having takenthe decision on agreement the mills in question will be returned to theirformer owners, it is not available to the Government now to say that thedecision had been revised. In the factual background the Government is estoppedfrom denying unilaterally that no such arrangements have taken place.

Secretary,Ministry of Industries vs Saleh Ahmed 46 DLR (AD) 148.

Promissory Estoppel –

Once theGovennment authority makes a promise and in pursuance of such promisesomething is done, subsequently it cannot back out furn its own promise andthat is why they are debarred by the promissory estoppel.

Abdur Rahimand 6 others vs Governemnt of Bangladesh 48 DLR 538.

Promissory Estoppel –

TheGovernment is bound by promissory estoppel not to deny the right and title ofthe petitioner since it accorded permission for transfer the Property. NasirHossain (Md) vs. Bangladesh and others 49 DLR 557.

Words and Phrases [Public Interest – Suit for damages]

Words andPhrases

Public Interest –

Publicinterest connotes matter of interest in which a class of the community wouldhave some kind of interest by which their legal right or liabilities areaffected.

ARShams-ud-Doha vs Bangladesh 46 DLR 405.

Ratio Decidendi/Obiter –

The 'terms''lessor' and 'lessee' as referred to by the Appellate Division in the judgmentunder reference cannot be taken as a ratio decidendi or even obiter andtherefore an legal bar the same creates no to decide the question here.

BangladeshSugar and Food Industries Corporation vs Md Kashem and others 55 DLR 350.

Recital –

In theabsence of any recital in the document itself a mere description of articles inschedule cannot be construed to impute an intention of transferring a specificproperty.

BCIC vsSattar Match Works 44 DLR (AD) 208.

Recounting –

Recountingof votes by the Election Tibunal not povided under the Election Rules but anoutcome of judicial decisions of Higher Courts but in the absence of clearjustification recounting should not be ordered.

HumayunKabir (Md) vs Md Mozajfar Hossain and others 48 DLR 560.

Recounting of ballots –

Administrativeauthority passing order without hearing the person being affected. Such orderwill be without jurisdiction. Jn this case the order of the Chief ElectionCommissioner passed at the instance of the petitioner for recounting of ballotswithout notifying the respondent who secured the highest number of votes waswholly without jurisdiction and void even if he had power to pass such anorder.

A Rouf Miavs Ministry of LGRD & Cooperatives 43 DLR 29.

Refixing the interest rate –

Refixing theinterest rate subsequent on the basis of PO 7 of 1973 and incorporating thesame in the mortgage deed-illegal and without authority-Circular letters of theGovernment is of no avail.

BHBFC vsAbdul Mannan 38 DLR 338.

Rehearing –

A rehearingis a new proceeding and it implies the hearing by the same tribunal which heardthe matter before.

Abu Taleb vsBangladesh 45 DLR {AD) 45.

Released –

The word"released" actually means termination of service and is within fourcomers of the Regulation. It does not. contain stigma, nor does it show thatthe employee's service has been terminated because ofany breach of disciplineor misconduct.

BangladeshBank vs Mohammad Abdul Mannan 46 DLR (AD) I.

Remand –

The Courtcannot put a premium on negligence of a party by making an order of remand forrecording additional evidence on its mere asking and overlooking completely thebackground of recording evidence.

Dudu Mia vsEkram Mia Chowdhury 44 DLR (AD) 46.

Remand –

No concisestatement" has been filed on behalf of the respondents although it is anold appeal. Under the Rules, therefore, the respondents cannot be heard.Neither the concession made by the learned Deputy Attorney General nor his prayerfor remand can thus be entertained and considered.

ShaikhMustainul Haque vs Inspector General of Police and others 47 DLR (AD) 157.

Remand –

When thecase was sent back on remand to the tribunal for recounting of ballot papers,the appellate tribunal committed an illegality in reopening the whole case andassessing evidence in its entirety.

HumayunKabir (Md) vs Md Mozoffar Hossain and othes 48 DLR 560.

Reversion –

A postalclerk asked to act as an Inspector on purely temporary basis was reverted tohis substantive post after about five years' service cannot be said to haveacquired a vested right in the post.

Bangladeshvs Md. Fazlul Huq 43 DLR (AD) 144.

Review –

The reviewapplications filed by the writ petitioners are to be rejected as the High CourtDivision does not have any jurisdiction, created or vested by law, to reviewits own judgment.

Omar Faruk(Md) and others vs Government of Bangladesh 51 DLR 118.

Review –

Failure onthe part of a judge to accept properly the submission of the learned Advocateresulting in an erroneous finding is no ground for review.

Ahmed Safavs Hamid Box 42 DLR 209.

Revision –

Revisionunder the Artha Rin Adalat Act is impliedly barred because the Act being aspecial legislation setting up special Court the remedies will follow asprovided therein.

Sultana JuteMills Ltd vs Agrani Bank 46 DLR (AD) 174.

Revocation –

A gift canonly be revoked before it is acted upon. But once the possession is deliveredin favour of the donee and he exercises his right of ownership the gift cannotbe revoked.

BasihurRahman Biswas vs Md Hanif Ali Biswas & others 52 DLR 346.

Rule of Law –

If a personis allowed to bypass the Ordinance and take his grievance to the Head of theState it will amount to no confidence in the rule of law.

GrihayanLimited vs Government of Bangladesh, through the Secretary, Ministry of PublicWorks and Urban Development, Bangladesh Secretariat, Dhaka and others 47 DLR(AD) 12.

Rules of Interpretation –

The basic presumption is that the words shouldreceive their ordinary and natural meaning, and this is displaced only whenthere is a real ambiguity either appearing on the face of the policy orrevealed by extrinsic evidence of surrounding circumstances.

BangladeshGeneral Insurance Co Ltd vs Chalna Marine Products Co Ltd 51 DLR 357.

Rules of Master and Servant –

When theservice of the petitioner is governed by the Rules of master and servant, themaster cannot be forced to accept the service of the servant.

Jamal Uddinvs Mir Kashem Bahumukhi High School 56 DLR 474.

Sentence –

Thecondemned prisoner accused had not come before the Court to say anything as tocommission of such gruesome murder and he being a fugitive from justice and lawno lenient, compassionate or sympathetic view can be taken so as to commute thesentence of death.

Ansar (Md)Chan Mia vs State 53 DLR (AD) 115.

Sentence –

If anaccused is convicted under section 302 of the Penal Code and sentenced toimprisonment for life and in the same case he is also convicted under section307 of the Code, the Court is not to award him any further sentence for theaccessory in such case.

Milon @Shahabuddin Ahmed vs State 53 DLR 464.

Servant –

Governmentservant-Serving under the Co-operative Societies Land Mortgage Bank-Not aGovernment servant.

Bangladeshvs Md Alauddin 38 DLR (AD) 81.

Service Matter –

RemovalRetrospective - The appellants, employees of the Trading Corporation ofBangladesh, were suspended in 1981 and final order of the it removal fromservice was made on 4th May, 1987 giving the same retrospective effect from thedate of suspension.

Held: Finalorder of removal shall have no retrospective effect, but it will be effectivefrom the date it was passed.

Ishaque Khan(Md) vs TCB 44 DLR (AD) 199.

Service –

Supersessionin Service - The petitioner was neither promoted to the post of AdditionalChief Engineer nor was he appointed substantively to the said post. He retainedhis lien to his original post and by the impugned notification he was merelyreverted to his substantive post. The question of reduction in rank does notarise.

Mominul Huqvs Bangladesh 38 DLR 391.

Service –

Regardingpromotion matters Rule 33 (c) of Bangladesh Water Development Board(Employees)Service Rules, 1982 contains nothing to the effect that after theexpiry of 3 months the additional post shall be deemed to be a substantive postor an employee holding current charge of an additional post shall be deemed tobe promoted to that post and the Court cannot read something which is not inthe Rule.

Mominul Huqvs Bangladesh 38 DLR 391.

Service –

If the Boarddoes not clearly specify in which capacity the petitioner was performing thefunctions of the Additional Chief Engineer, the court cannot say that there hasbeen a promotion. Reversion to substantive post is not reduction in rank.

Mominul Huqvs Bangladesh 38 DLR 391.

Service –

Head masterremoved from service by the Managing Committee of the School. This dismissalwas subsequently ratified by the Board-But subsequent ratification is of noavail.

ManagingCommittee vs Md Abul Basher Bhuiya 39 DLR 256.

Service - Dismissed from service –

When such adismissal is held illegal. While taking disciplinary action against an employeethe Instruction of the Bangladesh Bank is to be followed in conjunction withthe Regulations of the Bank-Any deviation whether in following the Instructionsor the Regulations will result in injustice and wrong to the employee of theBank.

Theplaintiff as per instruction I.O. has not been given the opportunity tocross-examine the witness examined on behalf of the management and theplaintiff has not also been given any opportunity to adduce his own evidence insupport of his defence.

BangladeshBank vs Tarique Ahmed 37 DLR 143.

Service Matter –

Chargesagainst the petitioner lacked any particulars as to when, where and to whom thedefamatory statement as alleged was made. No reasonable person can reply to orshow cause against vague allegations. The entire proceedings on the basis ofvague charges was illegal and violative of the principles of natural justice.

AKMHedayetul lslam vs Executive Vice Chairman BARC 43 DLR 44.

Service Matter –

Master &servant rule - Employee of statutory corporation-he does not come within themaster and servant rule. He is entitled to show-cause notice before hisdismissal or removal whether there is any statutory rule or not. Because ofcumulative effect of diverse legislative enactments his service has a publiccharacter. Case reported in 29 DLR (SC) 41 relied.

Abdul Jalilvs Bangladesh Steel & Engineering Corporation 43 DLR 474.

Service Matter –

Punishment-Respondenthas not brought on record material(s) of the kind wherefrom it can be said thatthe punishment that has been awarded to him is either irrational or an'outrageous' defiance of logic.

Agrani Bankvs Khandaker Badrudduza 56 DLR (AD) 136.

Service Matter –

Concept ofProportionality - The AAT was in serious error in modifying the order ofdismissal upon importing the concept of proportionality which has noapplication in the instant case in the background of the decision reported in46 DLR (AD) 85, when the concept is non-existent in the field of administrationof justice in Bangladesh.

Agrani Bankand others vs Khandaker Badrudduza 56 DLR (AD) 136.

Service of Notice –

From recordit is seen that show cause notice with the statement of allegations was sent tothe petitioner under registered post and that the envelope having not beenreturned to the sender the legal presumption is that notice of the proceedingwas duly served.

Mobarak Alivs Bangladesh House Building Finance Corporation 55 DLR (AD) 21.

Set off –

A defendantcannot claim in a written statement a set-off or counter claim against theplaintiff in a suit under the Adalat Act. The bar to claim set-off is impliedlycontained in section 5(1) read with-section· 2(Ka) and 2(Kha) and section 5(4)and 5(5) of the Adalat Act. Artha Rin Adalat will derive its jurisdiction fromthe express provisions of the statute and not from the procedural provision ofthe CPC.

Sultana JuteMills Ltd vs Agrani Bank 46 DLR (AD) 174.

"Shallstand dismissed" and "will be dismissed" - distinction betweenthese two phrases. Abdul Hadi vs Safaruddin 38 DLR (AD) 265.

Solatium –

Specificperformance was refused on the ground of hardship of the respondent. IfSolatium is paid only on consideration of the present market value of the landin question then the purpose of refusing specific performance on the ground ofhardship will be defeated. Mobarak Ullah vs Rani Gupta 43 DLR (AD) 1OO.

Solatium –

In a casewhere the auction purchaser has mustered all his resources and made biginvestment with great expectation, the setting aside of the auction-sale willset everything at naught. After considering the cases of both parties the Courtthought it just and proper that the appellant should be made to pay somecompensation to the auction-purchaser.

Abdul Jalilvs BHBFC 41 DLR (AD) 109.

Speaking order –

The court'sorder cannot be said to be speaking order when it does not contain thereasoning of the Court for arriving at the finding that the suit is notmaintainable in its present form.

Zahir Sheikhvs Md Yakub Ali 43 DLR 168.

Special Law –

Relation'between general law and special law-availability of remedy - if any legalremedy is ordinarily available under both general law and special law, theremedy prescribed by the special law must be sought in exclusion of the oneavailable under the general law.

ManagingDirector Rupali Bank vs Tafazal Hossain 44 DLR (AD) 260.

Specific damages –

Unlessproperty right is specifically affected by the construction of the neighbour'sroof, expected damages were merely speculative, not existent calling forinjunction.

AnwaraKhatun vs Gias Uddin Ahmed 41 DLR 474.

Stare decisis - An established precedent handed down by past judges.

AbdulMatalib vs Iman Ali 42 DLR (AD) 123.

Stare Decisis –

There is nomandate in the Constitution that a view taken or a proposition of law settledby a Division Bench of the High Court Division, even if erroneous and contraryto the provision of any Act, is binding upon a Single Bench of the sameDivision.

Atar AliMiah (Md) vs State and others 52 DLR 120.

Stealing for the landlord –

If a tenantduring his tenancy encroaches upon the land of a third person; he is consideredto have done it not for his own benefit, but for that of the landlord. If hehas acquired a title against the third person by adverse possession, he hasacquired it for his landlord and not for himself. This is based upon thedoctrine "Tenant stealing for the landlord."

Abdus Sattarvs Abdul Rahman 44 DLR (AD) 100.

Statutory and statutory order –

The word'statutory' means "as required by law". A statutory order means anorder passed as required by law and if so passed it would have the force of lawas if made by the legislature itself.

DCCI vsSecretary, Ministry of Works 39 DLR 145.

Statutory Corporation –

Not aGovernment department [Constitution of Bangladesh, 1972 Art 135]. Benefitsenjoyed by Government servants made available to the Bank's employees - They donot thereby become Government servants.

Bangladeshvs Md Alauddin 38 DLR (AD) 81.

Status quo –

Meaning of"status quo" has to be gathered from the plaint, written statement,written objection and the petitions of parties.

ManagingCommittee vs Fazlur Rahman 39 DLR 355.

Status quo –

Status quoinvolves an undertaking not to do a certain act.

ManagingCommittee vs Fazlur Rahman 39 DLR 355.

Status quo –

Order ofstatus quo by the court amounts to an order of temporary injunction.

ManagingCommittee vs Fazlur Rahman 39 DLR 355.

Sub-constitutional legislation –

The termsand conditions of service of a Supreme Court judge was sanctified byconstitutional provision and as such President's Order No. 21 of 1973 havingthe backing of the constitutional provision achieved the status ofsub-constitutional legislation.

Commissionerof Taxes vs Shahabuddin Ahmed 42 DLR (AD) 162.

Suit –

Withdrawalof suit - its effect - The effect of the withdrawal is that no suit was filedand so there is no existence of the decree or its reversal. But the factremains that the plaintiffs have been continuing with possession since the dateof taking over possession by entering into possession within 12 years ofcommencement of the defendant's adverse possession. In any view of the matterthe plain fact stands that the plaintiffs got restoration of possession asrightful owners by evicting the defendants who were trespassers and have beenmaintaining that possession and are in possession in fact and in reality. Itmakes no difference whether the possession was taken legally or illegally or inexecution of a non-existent decree or otherwise.

Nezamat Alivs Syed Ahmed 38 DLR 45.

Suit for damages –

Essentialrequirements of an action for abuse of civil process are malice and absence ofreasonable and probable cause. The principles which govern such actions are thesame as are applicable to actions for malicious prosecution, mutatis mutandis.

Salma Islamvs Parveen Banu & others 50 DLR 280.

Words and Phrases [Temporary injunction – Written Constitution]

Words andPhrases

Temporary injunction –

A person inwrongful possession of property is not entitled to be protected against thelawful owner by an order injunction and a trespasser is not entitled toperpetual injunction against the owner of property. But in case of cancellationof settlement it cannot be said that the lessee is a trespasser merely becausehis settlement has been cancelled. The question will always remain forconsideration whether the settlement has been validly cancelled. In opinion itis not necessary to attribute trespass of the appellant to deny him the reliefof injunction-Proposed lessee having parted with some land under proposedsettlement before completing settlement, he was not entitled to an order of injunctionto maintain his alleged possession.

BelayetHossain vs Nurul Alam Mir 42 DLR (AD) 20.

Termination –

Terminationis a recognised method of dispensing with the services of a worker by anemployer after fulilling certain conditions, such as, by providing terminationbenefits. The wide powers with which the Labour Court is vested under section25 (l)(d) of Employment of Labour (Standing Orders) Act (VIII of 1965) alsoincludes the power to order termination with termination benefits.

Haider Alivs Chairman, 2nd Labour Court 42 DLR 200.

Termination Simpliciter –

If the orderof termination, on the face of it, does not entail any stigma or does not referto any obligations, the termination is simpliciter.

BangladeshBank vs Mohammad Abdul Mannan 46 DLR (AD) 1.

Tenancy-Compensation –

In theabsence of any contract to the contrary measure of compensation forunauthorised use and occupation of the rented premises after termination oftenancy is the rate of rent of such tenancy.

FatickChandra Dey and others vs Dipok Kumar Dey and others 47 DLR 556.

Termination –

BangladeshParjatan Corporation vs Shahid Hossain Bhuiyan 43 DLR (AD) 154.

Theoretical Questions –

Abstracttheoretical questions are not to be decided by any court as those are of onlyacademic importance.

Kudrat-eElahi Panir vs Bangladesh 44 DLR (AD) 319.

Tort –

Tort hasbeen defined as an act or omission which is unauthorised by law andindependently of contract infringing of either some absolute right of another,or some public right of another causing damage.

A Hakim Khanvs B Sufia Khatun 39 DLR 275.

Tort & Damages –

Trespass isa wrong in tort to another's possession and it is actionable per se withoutproof of actual or special damage.

SerajulIslam Chowdhury and others vs Md Jainal Abedin and others 49 DLR (AD) 164.

Tort & Damages –

According tothe modem law of damages, liability for damage is based on the concept offoreseeability and it would seem that this concept should apply to all torts.

SerajulIslam Chowdhury and others vs Md Jainal Abedin and others 49 DLR (AD) 164.

Trade Union –

The word"Trade Union" directly relates to "worker and workmen" of acommercial business or establishment and or an industry and rests on the labourlaws. In the absence of any commercial business establishment or industry, thequestion of Trade Union does not arise.

BangladeshAnablic Shakti Commission Karmachari Union vs Labour Appellate Tribunal, 54 DLR430.

Tribunal –

AdministrativeTribunal - Whether it can be termed a Court- There are tribunals with many ofthe trappings of a court which nevertheless are not courts in the strict senseof exercising judicial power. An administrative tribunal may act judicially,but still remains an administrative tribunal as distinguished from a court.

MujiburRahman vs Bangladesh 44 DLR (AD) 111.

Vested –

It is thediscretion of the Government in whom the property is vested by law to allow thedecree to be executed. Whether, having regard to the facts of the case,Government should allow the decree to be executed against the impugned propertyvested in it by law is, for the Government to decide. Its discretion to dealwith its property is however, unfettered. It can always exercise its discretionin favour of the citizen or person to relieve hardship, particularly, when aCourt decree stands in his favour.

PriyatoshTalukder vs Assistant Custodian 39 DLR (AD) 178.

Vesting –

whencompleted, cannot be otherwise qualified or limited. Vesting, when completed,cannot be considered to be otherwise qualified or limited. Without anylimitation or qualification of the expression 'vest' in the Act itself, itcannot be pronounced to be partial, and not absolute. The ordinary dictionarymeaning of the term 'vest' is "furnish (person with authority, power,property, etc);(property, power) in (person) confer formally on him animmediate fixed right or present or future possession of".

PriyatolshTalukder vs Assistant Custodian 39 DLR (AD) 178.

Vested Property –

Claim by theGovernment or by the vested property authority that a certain property is avested property without the necessary factual basis and legal foundation has novalidity in the eye of law.

DayalChandra Mondal and others vs Assistant Custodian Vested and Non-ResidentProperties (L&B) and others 50 DLR 186.

Vested Property –

When theGovernment failed to prove the legal foundation for enlisting the suit propertyin the census report of the vested property and the plaintiffs Jed someevidence in support of their interest in the suit property the appellate Courtdecreed the suit on correct view of law.

Governmentof Bangladesh vs Paresh Chandra Gharami and others 50 DLR (AD) 70.

Vested Right –

A vestedright created by statute could be taken away by amending or repealing thestatute.

Bangladeshvs Md. Azizur Rahman 46 DLR (AD) 19.

Void ab initio –

Order passedby the lower court with knowledge of stay ordered by the superior court is anullity and void ab initio.

KM SarwarHossain vs Mosharraf Hossain and others 45 DLR 562.

Voter's list –

Mere listingof dead and absentee persons and mere production of a list certified by aperson who does not officially maintain the voter's list are not good enoughfor the court to accept the same as correct. Petitioner by evidence must provethat a particular voter did not cast his vote.

Abul Hashemvs Mobarak Uddin 38 DLR 145.

Voter's list –

That somevoters are dead and some were absentees and as such could not cast votes in anelection-such matters must be established and proved by the persons challengingtheir votes.

Abul Hashemvs Mobarak Uddin 38 DLR 145.

Wages –

"Wages"has been defined in section 2(vi) of the said Act and it includes any sumpayable to a person employed in respect of his employment by reason of thetermination of his employment. Under section 34 of the Industrial RelationsOrdinance any workman may apply to the Labour Court for the enforcement of anyright guaranteed or secured to it or him by or under any Jaw. As such, therespondent No. 2 could have applied to the Labour Court under section 34 of theIndustrial Relations Ordinance for determination of the quantum of terminationbenfits.

SekandarMiah vs Chairman 1st Labour Court 41 DLR 203.

Waiver –

Taking ofsome benefit by the terminated officer cannot be treated as waiver of his rightto challenge the action against him if the impugned order is otherwise illegalor malafide.

BangladeshShipping Corporation vs Raquibuddin Ahmed 46 DLR 470.

Waiver –

A waiverwould arise when one party by his conduct leads another to believe that thestrict rights arising under the contract will not be insisted upon by the otherand if the second party acted on it, the first party would not be allowed to insiston that right when it would be inequitable to do so.

Ataur Rahmanvs Bangladesh 46 DLR 307.

Waiver –

No one canconsent or legalise an illegality or condone an illegality if that right is nota personal right but concerns the public at large.

KabiruddinAhmed vs Akmal Hossain and others 48 DLR 245.

Waiver –

Thepetitioner giving promise or assurances cannot afterwards be allowed to revertto the position-must accept the legal relation which she herself has sointroduced, even though it is not supported by any law.

Syeda MazedaKhatun vs Bangladesh Shipla Rin Sangstha 55 DLR (AD) 82.

Waiver –

Anindividual can waive a right which exists for his benefit - Waiver of such aright even if it exists for the benefit of an individual, will be valid if somepublic policy is involed.

DCCI vsBangladesh 39 DLR 145.

Waiver –

It is theabandonment of a right, and is either express or implied-it may be implied fromconduct which is inconsistent with the continuance of the right.

AklasurRahman vs Safarullah 42 DLR (AD) 189.

Waiver –

When a rightis bestowed on a body to be exercised for the benefit of many, that cannot bewaived.

Abdul Hashemvs Mobarak Uddin 38 DLR 145.

Waiver and acquiescence –

"Waiver"and "acquiescence" in the payment of rent in lump. There is noadmission by the plaintiff in the instant case that he had no grievance as tomode of payment of rent in lump and the instant case is not a case of waiverand acquiescence.

Abdul GhaniKhan vs Abdul Rashid Khan 42 DLR 147.

Waiver and public policy –

The Latinmaxim runs thus - Privatoram conventio Juri Publico non derogant ie when publicpolicy requires the observance of a provision of law it cannot be waived. 39DLR 145.

Waqf Property –

In view ofthe fact that the waqif himself disposed of the property after creation of thealleged waqf and that there is nothing on record to show that as per terms ofthe Waqf Deed he acted as muawalli during his lifetime or that he got the sameenrolled as waqf but his subsequent conduct shows that the waqif himself didnot intend to create the waqf, as such the Waqf Deed was not acted upon.

Mokbul Ahmedvs Shamsul Rashid and others 49 DLR 18.

Will –

Even whenthe plaintiff proves due execution of the will he will not be entitled to grantof a probate if he failed to explain the suspicious circumstances surroundingthe execution of the will.

NarendraNath Biswas vs Sunil Kumar Biwas 45 DLR 567.

Without prejudice –

Letter withthe expression 'without prejudice' on the top of itIts implication-When aletter is written mentioning the expression "without prejudice", itmeans the terms made in it may be accepted by the person written to. If notaccepted the matter ends there. Exception when a letter cannot be referred tofor collateral matters.

Messrs HaqueBrothers (Carbide) Ltd vs Bangladesh Shilpa Rin Sanghsta 37 DLR (ADJ 54.

Written Constitution –

In a writtenconstitution the Parliament's right to making legislation is limited by theConstitution. This limited sovereignty of the Parliament in making laws is anessential feature of the working of the government under a writtenConstitution.

Abdus Samad vsBangladesh 44 DLR 354.

Pakistan Citizenship Act [II of 1951]

Pourasbava Ordinance, 1977

Prevention of Corruption Act, 1947

Printing Presses and Publication (Declaration and Registration) Act, 1973

Proclamation of Emergency

Proclamation of Withdrawal of Martial Law, 1986

Supreme Court Judges (Terms & Conditions of Service) Order, 1973

Trust Act, 1882

ARMS ACT, 1878 AND ARMS RULES, 1924

BANK COMPANY ACT, 1991

DRUGS (CONTROL) ORDINANCE, 1982

ADMINISTRATION OF JUSTICE ACT, 1956

BCS SENIORITY RULES, 1983

CONSTITUTION OF PAKISTAN, 1962

VILLAGE COURTS ORDINANCE, 1976

BANGLADESH SERVICE RULES

INDUSTRIAL RELATIONS ORDINANCE, 1969

CHILDREN ACT, 1974

ACQUISITION AND REQUISITION OF IMMOVABLE PROPERTY ORDINANCE, 1982

SPECIAL POWERS ACT, 1974

Non–Cadre Class I and II Gazetted Officers (Customs, Excise and VAT) Appointment and Service Terms and Conditions Act [XX of 2000]

Rangamati Hill Tract District Local Government Council (Amendment) Act, 1997

Abandoned Buildings (Supplementary Provisions) Ordinance, 1985

Acquisition and Requisition of Immovable Property Ordinance, 1982

Administration of Justice Act, 1956

Administrative Tribunal Act, 1981 & Administrative Tribunals Rules, 1952

Administrator General's Act. 1913

Admiralty Courts Act, 1961 & Admiralty Rules, 1912

Agrani Bank (Employees) Service Regulations, 1981

Alienation of Land (Distressed Circumstances) (Restoration) Ordinance, 1976

Anti-Corruption Act, 1957 & Anti-Corruption Manual

Arbitration Act, 1940 & Arbitration Act, 2001 & Arbitration Act, 1950 (English)

Army Act, 1952 & Army Regulations, 1960

Artha Rin Adalat Act, 1990

Articles of Association of IFIC Bank

Atia Forest (Protection) Ordinance, 1982

Bangabandhu Sheikh Mujib University Act, 1998

Bangla Bhasha Prochalan Ain, 1987

Bangladesh Abandoned Building (Supplementary Provisions) Ordinance, 1985

Bangladesh Abandoned Property (Buildings in the Urban Areas) Rules, 1972

Bangladesh Abandoned Property (Control, Management & Disposal) Order, 1972

Bangladesh Abandoned Property (Taking Over of Possession) Rules, 1972

Bangladesh Agricultural Development Corporation Ordinance, 1961

Bangladesh Allocation Rules, 1982

Bangladesh Bank Order, 1972

BANGLADESH BANK ORDER, 1972

Bangladesh Biman Corporation

Bangladesh Cinematograph Rules, 1972

Bangladesh Citizenship (Temporary Provisions) Order & Rules

Bangladesh Civil Service

Bangladesh Engineering and Technological University Ordinance, 1961

Bangladesh Environment Protection Act, 1995

BANGLADESH ENVIRONMENT PROTECTION ACT, 1995

Bangladesh Freedom Fighters' Welfare Trust (Head Office) Service Rules, 1979

Bangladesh Government and Local Authority Lands and Buildings (Recovery of Possession) Order, 1972

Bangladesh Homoeopathic Practitioners Ordinance, 1983

Bangladesh House Building Finance Corporation Order, 1973

Bangladesh Industrial Enterprises (Nationalisation) Order , 1972

Bangladesh Jute Mills Corporation Service Regulations, 1990

Bangladesh Krishi Bank

Bangladesh Land Holding Limitation Order, 1972

Bangladesh Legal Practitioners and Bar Council

BANGLADESH LEGAL PRACTITIONERS AND BAR COUNCIL

Bangladesh Legal Proceeding Order, 1972

BANGLADESH LEGAL PROCEEDING ORDER, 1972

Bangladesh Local Councils and Municipal Committees

Bangladesh Merchant Shipping Ordinance, 1983

Bangladesh Paribahan Karmachari Probidhanmala, 1990

Bangladesh Parjatan Corporation Service Rules, 1980

Bangladesh Passport Order, 1973 & Bangladesh Passport Rules, 1974

BANGLADESH PASSPORT ORDER, 1973 & BANGLADESH PASSPORT RULES, 1974

Bangladesh Public Administration Training Centre Employees Service Rules, 1992

Bangladesh Public Service Commission (Consultation) Regulation, 1979

Bangladesh Red Crescent Society Order, 1973

Bangladesh Rifles

Bangladesh Rin Salishi Ain, 1989

Bangladesh Road Transport Corporation Employees (Service) Regulations, 1990

Bangladesh Service Rules

Bangladesh Shilpa Bank

Bangladesh Shilpa Rin Sangstha Order, 1972